1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s NEGUSIE v . HOLDER , ATTORN EY GE NE RAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 07–4 99. Ar g u ed Nov e mber5, 2008—Dec ided M a r c h3, 2009 Th e Immigr at ionan d Natio n alityAc t (INA ) bar s anali e nfr om obtai n ing refugee status in this co untry if he “assiste d , or otherwise partici

pa t e d in t h e pers ecut ion of a n y pers ono na ccou n tof r a ce, religion , n a tion ali t y , member sh ip i na par t ic u l arsoc i al gr oup, orpolitic al opin ion

. ” 8 U. S. C. §1101( a) (42). Th is so- c alled “per sec u torbar” ap

plies to those seeking asylum or wi thholdingof r e mov a l, but does not disqua lify an alien from receiving a temporary defe rral of removal under the Convention Aga i ns t Torture a n d Other Cruel, Inhuma nor Degra d ingTr ea tment or Punis h ment (CAT). Dur i ng the time peti

tion er , anEr it r e ann a tion al, was for c e d to wor kas a pr i s ong u ar d in that country, the prisoners he guar ded were persecute don grounds pr otec ted u n d er§1101( a)(4 2 )

. Afteresc a pin gto th e U n ited St ate s , petition erapp lied forasy l u man d withholding of removal. Conclud

in gth at h eassiste dinth e per s ec u t ion of prisoners by working as an
ar med g u ar d, th e Immigr at i o nJu dg e denied relief on th e basis of the pers ecut or b a r, b u tgra n t e d deferra l of rem o va l under CAT b e ca us e petitionerwas likelyto be tor t ur ed i f r e t u r n e dt oE r i t r e a
. T h eB o a r d of Immigratio n Appeals (BI A ) affi rmed in all respects, holding, in t er alia, that the persecutor bar applies ev en if th e alien ’ s assi stan c ein pers ecut ion w a s coerced or o t herwis e the product of dure ss. The BI A followed it s e a rlier decisions finding Fedore nk ov. United States , 449 U. S. 490, controlling

. The Fifth Circui taffirmed, rely ingon its precedent follo wing thesame reasoning. Held:T h e BIA and Fifth Circuit misappl ied Fedore nk oas man d a t in g

that whether an alien is co mpelledtoas s i st in persecution is imm a te

rial for prosecutor-bar purp oses. The BIA must inter p r e t the statute , fr ee fr om th is mist akenleg a l pr emise, inthe fir s t in stan c e
. Pp. 4–12.

(a) Under Che v ron U. S. A. I n c. v. Natural Resource s Def e nse Coun

-2 NEGUSIE v. HOLDER Sy llabu s cil, Inc. , 467 U. S. 837, 84 2 –84 3, th e BIA is en titled to defer e n c e in int e rpret i ng a m b i guous INA provisions, see, e.g., INS v. Aguir reAgui rre , 526 U. S. 415, 42 4–42 5. Wh ent h e BIA h a s n o t spokenon “a mat t erthats t atute s pl ac e pr imar ilyin a g encyhands,” this Cour t’ s or dinar y r u le is to r e mand t oallow “the B IA .

. . to addr ess the ma t

ter in the firs t instance in light of its own experie n ce.” INS v. Or

lando V e nt ura , 537 U. S. 12, 16– 17. Pp. 4–5. (b) As there i s substance both to peti tioner’s contention that invol

unta r y a c ts ca nnot implicate the pe rsecutor bar because “persecu

tion” pr esume s mor a l bl ame w or thine ss, and to the Gover n ment’ s ar g u ment that the question atissue is an swered by the statute’s fai l ure t oprovide a n except ion for c oerced conduc t , itm u s t b econcluded t h a t th e INA h a s a nambig u ity t h at th e B IA s h ould address in the first in

stan c e
. Fedo re nk o , which a ddressed a dif f er ent statute enacted for a differentpurp os e, does notcont rol the BIA’ s inter p r e tation of thi s pers ecutor b a r
. I nholdin g th a tvolunta r in es s wa s not re q u ired with
r e spec t to suc ha barin the Disp laced Persons Act of 1948 (DPA), Fe

dore nk ocontrastedthe omi ssion there of the word “vol untary” with th e wor d ’ sin clu s ionina r e l a ted st atu t or ysu bsec tion

. 449 U. S., at 512. Bec a u s e Con gr e ss did n o t u s e th e wor d“v olu n t ar y”an y w h e r ein the persecutor bar at i ssue here, it s om iss i on ca nnotcarry t h e s a m e significance as it did in Fe do renk o
. Moreo v er, the DPA’sexclusion of even those involved in nonculpable, involunt a r y a s s i st ance in pers e c u tion was enac ted in par tto a ddress the Holocaust and its horror,
see id., at 511, n

. 32, wh er ea s th e per s ec u t orbarinth is c a se was en acted as p a rt of the Refugee Act of 198 0, wh ic hwas desig n ed to pr o vide agenera l rule for t h e o n going t r eatment of all refugees and dis

placed persons, see, e. g
. , A g u i rre-Ag uirre , supra, at 427. Pp. 5–8. (c) Whethe r aBIA determin a t ion tha t the pers ecution b a rconta i ns no except ion f o r coer ced co n d uctwo uld be reasonable, and thus owed Chevrondeferenc e, is a legi tima te quest i o n ; but it is not pr esented here. I ndenyi n g petitioner relief, the BIA recited a rule it has devel

oped inits c a ses: Anal ien ’ s motiv a t i on a n d intent are irrelevant to th e issu e w h et h e rh e“assi ste d” inpe rsecuti o n; rather, hisactions’ ob

j e ct ive effectcont rols

. A rea d ing of t h os e decis i ons confirm s t h a t t h e BIA ha s notexercis e d it s int e rpret i ve a u t h orit y b u t , ins t ea d, ha s deemed its interpretation to be mandatedby Fe dore nk o. This e rro r prevented the BIA from full y consid ering the statutory question pre

sen t ed. I t s m i staken as su mption stems from a failur eto recognize the inapplicab ility of the st a t utory construction principle invoked in Fedore nk o , as well as a fai l u r e to appr ec iate th e differ e nc es instatu

tor ypur p ose. The BIA i s n o t bound to a pplythe Fedorenk orule t o the persecutor bar here at i ssue. Whether the statute permits such
anin ter p r e tationbased ona differ e n tc o u r se of r e ason in gmu st be3 Cite as: 55 5 U

. S. ____ (2009) Sy llabu s deter m in ed inth e fir s t in sta n c ebyth e ag en c y
. Pp. 8–10.

(d) Because the BIA has not yet exercised its Chevrondisc r e tion to inter p r e t the sta t ute, the p r operc o ur se i s to r e mand t oit for addi

tion al in v e st i g ationorex plan ation , e.g., Gonzalesv. Thomas , 547 U. S. 183, 1 86, allowin git to br in gits ex per t ise to bearonth e mat t er , evaluate the evidence, mak ean in itial d e termination, and thereby help a c o ur t laterdeter m in e whethe r its decision exceeds the leeway that the law provides, e. g. , i d ., at 186–1 87

. Pp. 10–12. 231 Fed. Appx . 325, r e v e r s ed an d r e man d ed.

K ENNEDY , J., delivered the opinion of theCourt, in which R OBERTS , C. J., and S CALIA , S OUTER , G IN SB U R G , and ALITO , JJ., joined. S CALIA , J., filed a concurring opinion, in which ALI TO , J., joined. S T EVENS , J., filed
a nopinion con c ur ring in pa r ta n d dissenti ng in part, in which B REYER , J., joined. T HO MA S , J., filed a dissent ing o p inion._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–4 99
DANIE LGI RMAI NE GUSIE, PE T I TIONER v. ERIC H. HOLDER, J R ., ATT O RN EY GE NERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [M ar c h3, 2009] J USTICE K E NNEDY delivered the opinion of the Court. An alien who fears persecution in his hom e land and seeks refugee status in this countr yis barred from obtain

ing that relief if he has persecuted others. “The term ‘refugee’ does not include any pe rson who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, relig

ion, nation a lity, membership ina particular social group, or political opinion.” Immigration and Na

tionality Act (INA), §101, 66 Stat. 166, as a d ded by Refugee Act of 1980, §201(a), 94Stat. 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 remov a l, §1231(b)(3)(B)(i). It d oes n o t dis qualify analienfrom receiving a temporary deferral of removal under the Con

vention Against Torture andOther Cruel, Inhuman or Degradin g 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 cas e the Boar d of Immigr ation Appeals (BIA)2 NEGUSIE v. HOLDER Opinion of theCourt determined that the persecut or bar applies even if the alien’s ass i stance in p e rsecut ion was coerced or otherwise the produc tof duress. In so ruling the BIA followed its earlier decisions that found Fedo renkov. Unit e dSt at es , 449 U. S. 490 (1981), c o ntrolling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reas oning. We hold that the BIA and the Court of Appeals misapplied Fedorenko

. We reverse and remand for the agenc yto interpr e t the stat

ute, free from the error, in the first instance. I Petitioner in this Court is Danie lGirmai N e gusie, a dual national of Eritre a and Ethiopia, his father having been a nati o nal of the former and his mother of the latter. Born and e d ucated in Ethiopia, he left there for Eritrea around the age of 18 to see his mother and find employ

ment. The year was 1 994. After a few months in Eritrea, state officia l s tookcustody of petit i oner and o t hers when they were attending amovie. He was forced to perform hard labor for a monthand then was conscri pted into th e military for a time. War broke ou t between Ethiopia and Eritrea in 1998, and he was conscri pted again. When petitioner refused to fightagainst E t hiopia, his other homeland, the Eritre an Government incarcerate d him. Prison guards punishedpetitioner by beating him with sticks and placin g him in the hot sun. He was re leased after two year s and forced to work as a prison guard, a du ty he perfo r med on a rotating ba sis for abou t four years. It is undis puted that the prisoners he guarded were being persecuted on account of a protected ground— i.e. , “race, religion, nati o nality, membership in a particular social grou p, or politic al opinion.” 8 U. S. C. §1101(a)(42). Petitioner testified that he carried a gun, guarded the gate to prevent escape, and k e pt pr isoners from tak i ng showers and obtaining fresh air. He also guarded prisoners to3 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt mak e sure they stayed in the sun, which he k n ew 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 an y prisoner and that he helped prisoners on various occa

sions. Peti tioner esca ped from the prison and hid ina container, which was loaded on board a ship heading to the United States. On ce here he applied for asylum and withholding of removal. In a carefulopinionthe Immigration Judge, W. Wayne Stogner, fo und that p e titioner’s testimony, for the most part, was c r edible. He concluded that petiti oner assisted in persecution by working as an ar med guard. The judge determined that although “ther e’s no evidenceto establis h that [peti t ioner] is a malicious person or th at he was an aggressive person who mistreated the prisoners, . . . the very fa ct that he helped [the government] in the pris on compound where he had reason to k n ow that they were persecuted constitute s assisting in the p e rsecution of others and bars [peti t ioner] from” obtaining asylum or withholding of removal. App. to Pet. for Cert. 16a–17a (citing, inter alia , Fedo renko , supr a). The judge, however, granted def e rral of removal under CAT beca use petitioner was likely t o be tortured if returned to Eritrea

. The BIA affirmed the denial of asylum and wi thholding. It noted pe titioner’s ro le as an armed guard in a facility where “pris o ners were tortured an d 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 ac tively tortu red or mist reated anyo n e, is imma

terial.” Ibi d

. That is because “ ‘an alien’s m o tivation a n d intent are irrelevant to the issue of whether he “assisted” in persecution . . . [I]tis the obj e ctive effect of an alien’s actions which is controlling.’ ” Ibid. (quoting Matter of Fedorenko , 19 I. & N. Dec. 57, 69 (BIA 1984 )). The BI A4 NEGUSIE v. HOLDER Opinion of theCourt also affirmed the grant of deferral of removal under CAT. On petition for review the Court of Appeals agreed wit h the BIA that whether an alien is compelledto assist in persecution is immat e rial for persecutor-bar purposes. App. to Pet

. for Cert. 2a (citing Fedorenko , 449 U. S., a t 512, n. 34). We granted certiorari. 552 U. S. ___ (2008). II Consistent with the r u le in Chevron U. S. A. Inc. v. Natu ral Re sources Def e nse Counc il, Inc. , 46 7 U. S. 837, 842–843 (1984), the BIA is entitled to deference in int e r preting ambiguous provisions of the INA. The questi o n here is whether an alien who wa s compelled to ass i st in persecution can be eligible for as ylum or withholding of removal. We conclude that the BIA misapp lied our prece

dent in Fed o renkoas mandating th at an alien’s motivation and intent are irrelevant to the issue whether an alien assisted inpersecution. The ag ency must confront the same questi o n free of th is mistak en legal premi s e. A It is well settled that “principles of Chevrondeference are applicable to this statutory scheme.” INS v. A g uirr eAguirre , 526 U. S. 415, 424 (1999). Congress has charged the Attorney General with administering the INA, and a “ruling by t h e Attorney General with respec t to all ques

tions of law shall be controlling.” 8 U. S. C. §1103(a)(1). Judicial deference in the immigr ation context is of special importance, for executive offi cials “exercise especially sensitive p o litical fun ctions that implicate questions of foreign relations.” INS v. Abudu , 485 U. S. 94, 100 (198 8). The Attorn ey General’s decision to bar an alien who has participate d in persec ution “may affect our r e lations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibili ty for assessin gthe lik elihood and i m portance of such diplo

-5 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt matic reper c ussions.” Aguirr e-Ag uirre , 526 U. S., at 42 5. The Attorn ey General, in turn, has delegated to the BI A the “ ‘discre tion and authority conf erred upon the Attorney General by law’ ” in the course of “ ‘consideringand deter

mining cases before it .’ ” Ibid . (q uoting 8 CFR §3.1(d)(1) (1998)). As a conseq uence, “the BIA should be accorded Chevronde ference as it gives ambiguous statutory terms ‘concrete m e aning through a proce ss of case-by-case adju

dication.’ ” Aguirr e-Ag uirre , su pra , at 425 (quoting INS v. Cardoza-Fo nseca , 480 U. S. 421, 448–449 (1987)). When the BIA has not spoken on “a ma tter that statutes place primarily in agency ha nds,” our ordinary rule is to remand to “giv[e] th e BIA the opportuni ty to address the matter in the first instance in li ght of its own experience.” INS v. Orlando Ventura , 537 U. S. 12, 16–17 (2002) (per cu riam)

. B The parties disagree over whethe r coercion or duress is relevant in determining if an alien assistedor otherwise participate d in persecution. As t h ere is substance to both contentions, we conclude that the statute has an ambigu

ity that the agency should address in the first instance. Petitioner argues tha tthe statute’s plain language makes clear that in voluntary acts do not implicate th e persecutor bar because “ ‘persecution’ ” presumes mora l blameworthiness. Brief for Petitioner 23–28. He invoke s principles of criminal culpability, concepts of international law, and the rule of lenity. Id. , at 28–45. Those argu

ments may be persuasive in determining wh ether a par

ticular age n cy interpretation is reasonable, but they do not demons trate that the statute is unambigu ous. Peti

tioner all b u t conceded as much at argument in this Court when he indicated tha tthe BIA has discretion to constr ue the duress defense in e i ther a narrow or a broad way. Tr. of Oral Arg. 20–24. The Government, on the other hand, asserts that the6 NEGUSIE v. HOLDER Opinion of theCourt statute doe s not allow petitioner’s const r u ction. “Th e 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. Th e silence is not conclu

sive. The question is whether the statutory te xt mandates that coerce d actions must be deemed assistance in perse

cution. Onthat point the statute, in its precise terms, is not explicit. Nor is this a case where it is clear that Con

gress had an intention on the precise ques t ion at issu e. Cf. Cardoza

- Fonseca , supra , at 44 8–449. The Government, lik e the BIA and the Court of Appeals, relies on Fedorenko to provide the answer. This reliance is not withoutsome basis, as the Co urt there h e ld that vol

untariness was not required wi th respect to another per

secutor bar. 449 U. S., at 512. To the extent, however, th e Government deems Fedorenkoto be controlling, it is in
error. In Fedoren ko , the Court interpret e d the Displaced Per

sons Act of 1948 (DPA), 62 Stat. 1009. T h e DPA was enacted “to enable European refugees driven from their homelands by the [second worl d] war to emigrate to th e United Sta t es without regardto traditional immigration quotas.” 449 U. S., at 495. Secti on 2(b) of the DPA pro

vides relief to “any dis p laced person or refugee as define d in Annex I of the Constitution of the International Refugee Organiza tion” of the United Na t i ons (IRO Constitution). 62 Stat. 10 09. The IRO Constitution, as codified by Con

gress, excludes any individual “who can be s h own: (a) to have assisted the enemy in perse c uting civil populations of countries, Members of the United Nations; or (b) to have voluntarily assisted theenemy forc es sincetheoutbreakof the second world wa r in their operations against t h e United Nati ons.” Annex I, Part II, §2, 62 Stat. 3051–3052. The FedorenkoCourt held that “an individual’s service
as a concen tration camp armed guard—whether volunta r y7 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt or involunt ary—made him in eligible for avisa” 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 comparin g §2(a) with §2(b), which excludes only those i n dividuals who ‘ voluntar

ilyassisted the enemy forces.’ ” Ibid. The Court relied on the principle of statuto r y cons tru ction that “the delib erate omissionof the word ‘voluntary’ from §2(a) compels the conclusion that the statute made al l those who assisted in persecution of civilians ineligibl e for visas.” Ibid. Fedorenko does not compel the same conclusion in the case now be fore us. Th e textual st ructure of t h e statute i n Fedorenko (“voluntary” is in one subsection but not the other) is not par tof th e st atutory framework considered here. Con gress did not use the word “voluntary” in a n y subsection of the pers ecutorbar, so its omission cannot
carr y the same significance. The difference between the statutory sche me in Fe

dorenkoand the one h e re is conf irmed when we “ ‘looknot only to the particular s t atutory lan guage, but t o the design of the statute as a whole and to its object and policy.’ ” Dadav. M ukasey , 554 U. S. 1, __ _ (2008) (slip op., at 1 3 ) (quoting Gozlon-Pere tzv. United S t ates , 498 U. S. 395, 407 (1991)). Both statutes were enacted to reflect principl es 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 a d dress individuals who were forced to leave their homeland s during and after the sec

ond WorldWar. Fedorenko , supra , at 495. The D PA excludes those who “vo l untarily assisted the e n emy forces since the outbreak of th e second world wa r,” 62 Stat. 3052, as well as a ll who “assi sted the en emy in persecuting civil populations of countries,” id ., at 3 051. The latter exclu

sion clause makes no reference to culpability. The exclu

sion of eve nthose involved in nonculpable, involuntary8 NEGUSIE v. HOLDER Opinion of theCourt assistance in Nazi persecution, a s an expert testified in Fedorenko , may be “ ‘[b]ecause the crime again s t humanity that is involved in the concentrat i on camp puts it into a different category.’ ” 44 9 U. S., at 5 11, 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 enacte d to addre ss not just the post war refu gee problem but also the Holocaust and its horror, the Refuge e Act was designed to provide a general rule for the ongoin g treatment of all refug ees and displaced pers ons. As th is Court has twice recog n ized, “ ‘one of Congr e ss’ primary purposes’ in passing the Refugee Ac t was to im plement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refug ees, Jan

. 31, 1967, 1 9 U. S. T. 62 24, T. I. A. S. 6577 (1968),” as well as the “United N a tions Convention Relating to t h e Status of Refugees, 189 U. N. T. S. 150 (Jul y 28, 1951), reprinted i n 19 U. S. T. 6259.” Agu i rre-A g uir re , 526 U. S., at 427 (quot

ing Cardoz a-Fonsec a , 480 U. S., at 436–437). These authorities illustrate why Fedorenko , which addressed a different statute enacted for a d i fferent pur

pose, does not control the BIA’ s interpret a tion of this persecutor bar. Whatever weight or relevance these vari

ous authori ties may have in in terpreting the statute should beconsidered b ythe agency in the fir s t instance, and by any subsequent reviewing court, after our remand. C The Government argues that “if there were an y ambigu

ity in the text, the B o ard’s determination that the ba r contains no such exception is reas onable and thus control

ling.” Brief for Respon dent 11. Wh ether suchan interp re tation would be reason able, and t hus owed Chevrondefer

ence, is a legitimate question; but it is not now before us. The BIA d eemed its interpretati on to be mandated by Fedorenko , and that error prevented it from a full consid

-9 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt eration of the statutory question here presen ted. In denying relief in this case the BIA reciteda rule that has developed in its own case law in reliance on Fe

dorenko:“[A]n alien’s motivation and intent are irrelevant to the is sueof whetherhe ‘ass is ted’ in persecution . . . [I]t is the object ive effect of an alien’s actions which is control

ling.” App. to Pet. for Cert. 6a. T h e rule is based on three earlier decisions: Matter of Laipen ieks , 18 I. & N. Dec. 4 33 (1983); Matter of Fedorenko , 19 I. & N. Dec. 57; and Matter of Rodriguez-Majano , 19 I. & N. Dec. 811 (1988). In Matter of Laipeni e ks , the BI A applied the Court’s Fedorenko analysis of the DPA to a different postwa r statute, which provided for the deportatio nof anyone associated with the N a zis who “o rdered, inci ted, assisted, or otherwise participated” in persecution based on a pro

tected grou nd. 8 U. S. C. §1182 (a)(3)(E)(i). Finding no agency or j u dicial decision on point, the BI A relied on Fedorenko

. It recogniz ed that the unique structure of th e Fedorenko s t atute was not present in §1182(a)(3)(E)(i), but the BIA nevertheless adopted wholesale t h e Fedorenko rule: “[A]s in Fedorenko , . . . the plain language of [§1182(a)(3)(E)(i)] mandates a literal interpretation, and the omissio nof an intent elemen t compels the conclusion that [§1182(a)(3)(E)(i)] makes all t h ose who as sisted in th e specific persecution deportable.” 18 I. & N. Dec., at 464. In other words, “par tic u lar motivations or intent . . . is not a relevant factor.” Ibid

. The second decision, Matter of Fedorenko , a l so d e a l t with §1182(a)(3)(E)(i), and it involved the same alien whose citizenship was revoked bythis Court’s Fedorenk o decision. This time the agencysought to deport hi m. Fedorenko responded by requesting suspension of deporta

tion. He ar gued that, unlik e the DPA’s bar on any assis

tance—voluntary or involuntary—in persecution, see Fedorenko , 449 U. S., at 512, th e text and structure of §1182(a)(3)(E)(i) required deportation only of those who10 NEGUSIE v. HOLDER Opinion of theCourt voluntarily assisted in persecuting others. The BIA re

jected thatdistinction, noting that it was foreclosed by Matter of Laipeniek s :“It may be, as [Fedorenko] argues, that his service at Treblinka was involunta r y. . . . We need not resolve the issue, however, because as a matter of law [Fedorenk o ’s] motivations for serving as a guard at Treblink aare immaterial to the qu estion of hi s deportabil

ity under” § 1182(a)(3)(E)(i). 19 I. & N. Dec., a t69–70. Later, the BIA applied this Cou rt’s Fedorenkorule t o the persecutor bar that is at issue in the present case. I n Matter of Rodriguez-Majano , the BIA gran ted relief be

cause the alien’s coer ced conduct as a guerrilla was not persecution based on a protected ground. 19 I. & N. Dec. , at 815–816. Nevertheless, in reaching its co nclusion the BIA incorporated without additi onal analysis the Fe

dorenkorule as appliedin Matte r of Laipeni e k sand reiter

ated in Matter of Fedorenko

. 19I. & N. Dec., at 814–815. The BIA re affirmed th at “[t]he pa rticipation or assistance of an alien in persecuti o n need not be of his own volition to bar him from relief.” Id. , at 81 4 (citing Fedorenko , 449 U. S. 490). Our reading of these decisions c o nfirms that the BIA has not ex ercised its interpretive authority but, instead, has determ ined that Fedorenkoco ntrols. Thi s mistaken assumption stems from a failure to recognize the inappli

cability of the principle of statutory construction invoke d in Fedorenk o , as well a s a failure to appreciate the differ

ences in sta t utory purpose. The BIA is not bou n d to appl y the Fedorenkorule that motive and intent are irrelevant to the pers ecutor bar at issue in this case. Whether the statute per m its such an interpre tation based on a diffe r ent course of reasoning must be determined in the first instance by the agency. III Havingcon c luded thatthe BIA ha s not yetex ercised its11 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt Chevrondi scretion to interpret the statute in question,

“ ‘ “ t he prop er course, except in r a re circum s tances, is to remand to the agencyfor addi tional investigation or ex

planation.” ’ ” Gonzalesv. Thomas , 547 U. S. 183, 18 6 (2006) (percuriam)(qu o ting V e nt ura , 537 U. S., at 16, i n turn quoting Florida Power & L i ght Co. v. Lorion , 47 0 U. S. 729, 744 (1985)). This rem and rule exists, in part, because “ambiguities in statutes within an a g ency’s juri s diction to administer are delegations of authority to the agency to fill the sta t utory gap in reason able fashi o n. Filling thes e gaps . . . i nvolves diff icult policy choices that agencies are better equipped to make thancourts.” Na

tional Cabl e & Teleco mmunicatio n s Assn. v. Brand X Interne tSe r v ices , 545 U. S. 967, 980 (2005). J USTICE S T EVEN Swoul d have the Court pro vide a defi

nite answer to the question pres ented and then remand for further proceedings. That approach, however, is in tension with the “ordin ary ‘reman d’ rule.” Ventura , supr a , at 18; see also Cajun Ele c . Po werCooper ative, Inc. v. FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion f o r the Court by Silberman, J ., joined byR. Ginsburg and Tho

mas, JJ.) (“ [I]f an agen cy erroneously contends that Con

gress’ intent has been clearly expressed and h a s rested o n that ground , we remand to require the agencyto consider the question afresh inlight of the ambiguity we see”). Thomasis illustrative. There, the agency had not dete r mined whether a family may co nstitute a soc i al group for the purposes of refugee status. The Ninth Circuit held that the family can constitute a protected social group an d that the pa rticular fa mily at iss u e did qualify. 547 U. S., at 184–185. The Solicitor Genera l sought re view in thi s Court on “ w hether th e Ninth Cir c uit erred i nholding, in the first instance and without pri o r resolution of the ques

tions by the relevant ad ministrativ e agency, th at members of a family can and do constitute a particular social group, within the meaning of the Act.” Id. , at 185 (i nternal quo

-12 NEGUSIE v. HOLDER Opinion of theCourt tation marks omitted). He argued t hat the Nin t h Circuit ’s decision vio l ated the Venturaordinary reman drule. We agreed and summarily reversed. 547 U. S., at 184–185 Venturaand Thomas counsel a similar result here. Because of the important differences betweenthe statute before us a n d the one at issue in Fedorenk o , we find it appropriate to remand to the agency for its initial deter

mination of the statutory interpretation question and its application to this case. The a g enc y ’s interp re tation of th e statutory m e aning of “persecution” may be explained by a more comprehensive de finition, on e designed to elaborat e on the term in anticipation of a wide range of potential conduct; and that expanded definition in t u rn may be influenced by how p r a ctical, or i m practical, the standa r d would be in terms of its application to specific cases. These mat t ers may have rel e vance in determini n g whether its statutory in terpretatio nis a permissible one. As the Court said in Venturaand reiterated in Thomas , “ ‘[t]he age n cy can bring its expertise to b e ar upon the matter; it can evaluate the evidence; it can ma ke an initial determination; and, in doing so, itcan, through informed discussion and analysis, help acourt later determine whether its decision exceed s the leeway that the law provides.’ ” 547 U. S., a t186–187 (quoting Ventura , sup r a , at 17). If the BIA decides to adop t a standard that consid

ers voluntariness to some degree, it may be prudent and necessary for the Immigration Jud ge to conduct additiona l factfinding based on the new stan dard. Those determina

tions are for the agenc yto make in the first instance. * * * We reverse the judgm e nt of the Court of Ap peals and remand the case for further proc eedings consistent with this opinion

. It is so orde red._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009)

S CALIA , J ., co n c ur ring 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–4 99
DANIE LGI RMAI NE GUSIE, PE T I TIONER v. ERIC H. HOLDER, J R ., ATT O RN EY GE NERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [M ar c h3, 2009] J USTICE S CALIA , with whom J UST I CE ALITO joins, c o n curring. I agree with the Court that “the s t atute has an ambigu

ity,” ante , at 5, with respect to wh ether an alien who was coerced to assist in persecution is barredfro mobtaining asylum in the United States. I agree that the agency is entitled to answer that question. Ibid. See Chevro n U. S. A. Inc. v. Natura l Resources Defens e Co uncil, Inc. , 467 U. S. 837, 843 (19 84). And I agree that a remand is in order, to give the agency an oppor t unity to cl arify wheth e r its affirmative answer was premised on an erroneous vie w that this C o urt’s decision in Fedorenkov. Unit e dSt a t es , 449 U. S. 490 (1981), compelled it. Ante , at 11

. I would notagree to remand if I di d not thin k that th e agency has the optionof adherin gto i t s de cision. Th e majority appears to leav e that question undecided, ante , at 5 (reservingwhether “aparticular agency inte rpretation is reasonable” ); two Justices forthrightly disagre e and would require the agency to recogniz e at least some sort of du

ress excepti o n, post , at 7 (S T EVE N S , J., concu rring in pa rt and dissenting in part). But good r e asons for the agency’s current p r actice ex

ist—reasons adequate to satisfy the requirement that an agency act reasonably in choosing among various pos s ible constructio n s of an ambiguous statute. Th e statute does2 NEGUSIE v. HOLDER

S CALIA , J ., co n c ur ring

no t m and a t e t h e ru l e prec l u d i ng th e dur e s s de fe n s e b u t d oes no t for e clo s e i tei t h e r ; the a g en c y is fr ee to re tain t h a tr u le so lo n gas th e c h oi ce to do so is s o un dl yrea son e d , n o tba s e d on ir releva nt or arb i t r ary f a ct ors ( l ike the Fe dore nko pr ec ed en t)

. The primar y contention to the contrar yis, in short, that barring aliens who persecuted under duress would punish purely “non culpable” conduct. Tha targument suffers from at least three unjustified leaps of logic. First, it implicitly ado p ts a view of “culpability” that i s neither the only view nor one nec e ssarily applicable her e
. The culpability of one who harms another under coerci on is, and has always been, a subject of intense debate, rais

ing profound questions of moral p h ilosophy a n d individual responsibili ty. (The so-calle d “Nuremberg defense” comes readily to mind.) At common law, duress was not an accepted de fense to int e ntional 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 soldierfollows a military order he kno w s to be un la wful. Id. , §9.7(g), at 86; see als o , e.g. , Axtell’s Case , Kel. J. 13, 84 Eng. Rep. 1060 (1660); Prosecu torv. Erdemovi ć , [1997] 2 ICTY Jud. Rep. 1610, 1635 (Int’l Crim. Trib. for Former Yugoslavia). It is therefore far from clear that precluding a dures s defense h e re would, as petitioner a lleges, “disr e gard principles of bla m e . . . ‘uni

versal and persistent’ in Am erican law.” Brief for Peti

tioner 32 (quoting Moriss ettev. UnitedStates , 342 U. S. 246, 250 (1952)). All of this suggests that th ose who are coerced to c o mmit wro n g are at least sometim e s“culpable” enough to be treated as criminals. More importantly, this is not a c r i minal matter. This Court has long understood that an“order of d e portation is not a punishment for crime.” F o ng Yue Ti ng v. Uni t ed3 Cite as: 55 5 U

. S. ____ (2009)

S CALIA , J ., co n c ur ring Sta t es , 149 U. S. 698, 730 (1893). Asylum is a benefit accorded by grace, not by entitlement, and withholdin g that benefit from all w h o have int e ntionally harmed oth

ers—wheth e r under coercion or not—is not unreasonable. Second, petitioner assu mes that th e persecutor bar must have been intended merely to punish wrongdo i ng. But in the context of immigration law, “culpability” as a relevant factor in de termining admissibilit y is only one facet of a more gener a l consider ation: desir ability. And there may well be reasons to think that thos e who persecuted others, even under duress, would be relatively undesirable a s immigrants. If, for example, the asylum laws grant entry to those who suffered the persecution, might it not be imprudent to also gra n t entr y to the coerce d persecuto r , who may end up living in the same community as oneof his victims? The Nation has a legitimate interest in pre

venting the importation of ethni c strife from remote parts of the world, and the agency may resolve the statutory ambiguity in a way tha tsafeguards that interest. Finally, eve nif culpability is the only relevant facto r, and even if a narrow, criminal-law based view of culpabil

ity is the a u thoritative one, a bright-line rule excluding all persecutors—whether acting unde rcoercion or not—migh t stillbe the best wayfo r the a g enc yto effec t u a te the stat u tory schem e
. See generally Cox & Posner, Second-Or d er Stru cture of Immigration Law, 59 Stan. L. Rev. 809 (2007). Im migration judges already face the overwhelm

ing task of attempting to recreate, by a limited number of witnesses speaking th rough (often poor-quality) transla

tion, events that took place years ago in foreign, usually impoverished countries. See Diav. Ash c roft , 353 F. 3d 228, 261–262 (CA3 20 03) (en banc) (Alito, J., concurring in part anddi ssenting in part). A d ding on top of that th e burden of adjudicatin gclaims o f duress a n d coercion, which are extremely difficult to corroborate and necessar

ily pose questions of degree thatrequire intensely fact

-4 NEGUSIE v. HOLDER

S CALIA , J ., co n c ur ring bound line-drawing, would increase the already inherently high risk of error. And the costof error (viz., allowing
un coerced persecutors to remain in the country perm a nently) might reasonably be viewed by the agency as significantly greater th an the cost of overinclusion under a bright-line rule (viz., denial of a s ylum to some coerced persecutors—who might anywa y be entitled to protection under the Convention Against To rture, which includes no analogous p e rsecutor bar). It is worth noting thatalthough t h e agency’s “objectiv e effects” approach to the statute would seem to sweep beyond the duress scenario to en compass even an alien who had no idea that h i s actions would “objectively” assist in persecution, see C astañ eda-Castillo v. Gonzales , 48 8 F. 3d 17, 20 (CA1 2007 ) (en banc), there is no reason wh y the agency cannot consider questions of knowledgesepa rate and ap art from qu estions of duress

. Bothcan be said to relate to the menta lstate of t h e persecut or,* but th ey present different problems wh ich can be grappled with separately. The agency need not provide an “all

embracing answer,” ibid. , in the present case. It may evaluate problems one by one as they arise, a n d whateve r it might decide about an unkno wing persecutor is irrele

vant to petitioner, who k n ew exactly what he was doing. To be clear, I do not en dorse any p a rticular ru le. It is t o agency officials, not t o the Members of this Court, tha t Congress has given dis cretion to chooseamon g permissib l e interpretati ons of the statute. T h ey deserve to be told clearly whether we are serious about allowing them to exercise that discretion, or are rather firing a warnin g shot across the bow.

——————

* Therationale for the duress defense, however, is conven tionally “not that the defe ndant .

. . somehow loses his mental c a pac i tyto c o m m it the c r i me in q u estion,” but r a ther that “e v e n though he has done th e ac t the c r i me r e quir es andhas the mental st ate whic h the c r i me re quires , his con d uct .

. . is exc u s e d.” 2 LaFave, supra , §9.7(a), at 73._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) Opinion of S TEVENS , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–4 99
DANIE LGI RMAI NE GUSIE, PE T I TIONER v. ERIC H. HOLDER, J R ., ATT O RN EY GE NERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [M ar c h3, 2009] J USTICE S T EVEN S , wit hwhom J USTICE B RE YE Rjoins, concurring i npart and dissenting in part. The narrow questionof statutory construction presented by this cas e is wheth e r the so-c alled “persecutor bar,” 8 U. S. C. § § 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B), disqualifies from asyl um 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 shou ld defer to t h e AttorneyGeneral’s e v aluation of particular circumstan c es that m a y or may not establish duress or c oercion in individual c a ses. But t h e threshold question the Court addresses to day is a “pure question of statutoryc o nstruction for the co urts to dec i de.” INS v. Cardoza-Fo nseca , 480 U. S. 421, 446 (1987). For tha t reason, while I agree with th e Court’s cogent explanation of why its misguided decision in Fedorenk ov. Uni t ed Sta t es , 449 U. S. 490 (1 981), does not govern our interpretation of the persecutor bar, I would provide a definit e answer to the question presented and thenremand for further proceedings. I Judicial de ference to agencies’ views on sta t utes the y administer was not born in Chevron U. S. A. Inc. v. Natural Resour c es Defen se Council, Inc. , 467 U. S. 837 (1984),2 NEGUSIE v. HOLDER Opinion of S TEVENS , J. nor did th e “singularly judicial role of marking t h e boundaries of agency choice,” Young v. Community Nutrition Insti t u t e , 476 U. S. 974, 98 8 (1986) (S TEVE NS , J ., dissenting), die with that case. In the years before Che v ron , this Court recogni z ed that statutory int e rpretation is a multifaceted enterpri se, ranging from a preci s e construction of sta t utory language to a determination of what policy best effectuates statutory objectives. We accordingly ackno w ledged th at a complete interpretation of a statutory p r ovision might deman dboth judi cial construction and administrative explication. E.g. , NLRBv. Hea rst Publications, Inc. , 322 U. S. 111 (1944) (co n struing th e term “employee” in the National Labor Relations Act but deferring to the National L abor Relations Boa r d’s finding that newsb o ys were employees); see Nathanson, Administrative Dis cretion in the Interpretation of Statutes, 3 Vand. L. Re v. 470 (1950). Chevron ad hered to this approach. There, we r e cognized 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 Environmenta l P r otection Agency (EPA) the policy question whether Sta t es could t r eat entire plants or o n ly their di screte pollution-emitting devices a s sources of pollution for purposes of the Act’s permit program. Congress left a gap for the agency to fill, and the agency b r ought its e x pertise, political acuity, and information-gathering abilities to bear in doing so. See Chevron , 467 U. S., a t865–866. 1 In k eeping with precedent, see id. ,

——————

1 Notably , the EPA c a st i t s a c tiv i tynot as sta t utor yc o ns tr uc tion but as pub licad mi nistr a tion; i t s r u lemaki ng s o ught to a c hieve policy goa l s, s u ch a s reduci ng re gula t o ry com p lexit ya n d prom ot ing pla n tm o dernization

. See 4 6Fed. Reg

. 5076 6 (19 81). To be su r e , the EPA ar g u ed that its r e g u lation defining“sta tion ar ysou r c e ” as anen tir eplan t was permissible u n der the Clean Air Act, but the agency treated its rulema king a s a ma tter of fa shioning s o undpolicy, not of dis c erning th e meaningof “stationar yso urce” in the statute.3 Cite as: 55 5 U

. S. ____ (2009) Opinion of S TEVENS , J. at 843–845, and nn. 9, 11–14, our opinion rea ffirmed both that “[t]he judiciary is the final authority on issues of statutory construction,” id. , at 84 3, n. 9, and that courts should defer to an a g ency’s rea s onable for m ulation of policy in response to a nexplic it or implicit congressiona l delegation of authority. The Chevron frameworkthus accounts for the different institutional competencies of agencies and courts: Courts are expert at statutory con

struction, while agencies are expert at statutory implementation. That the distinction can be sub t le does n o t lessen its i m portance. In the 25 y e ars since Chevronwas decided, this Court has continued to recognize that courts and a g encies pla y complementaryroles in the p r oject of statu t or y interp reta

tion. We h a ve repeatedly held that “ambiguities in statutes within an agency’s ju risdiction to administer are delegations of authority to the agency to fill the statuto r y gap in reasonable fash ion.” Nati onal Cable& Tel ecom munication s Assn. v. B rand X Inte rnet Se rvic e s , 545 U. S. 967, 980 (2005). But even when confronted with a statute that involves a degree of ambiguity—as most s t atutes do

— we have n o t abdicate dour judic i al role. T h e fact tha t Congress has left a gap for the agency to fil lmeans that courts should defer to the agency’s reasonabl e gap-fillin g decisions, not that cour ts should cease to mark the bounds of delegated agency cho i ce. 2 In cases involving age n cy adju dication, we have sometimes described the court’s roleas deciding pure questions of statutory construction and the a g ency’s role as applyin g law to fact. See, e.g. , Cardoza-Fonseca , 4 80 U. S. 421; NLRBv. Food & Co mmercial Workers , 4 84 U. S. 1 12

——————

2 Cf. United St atesv. Mead Corp. , 533 U. S. 218, 236

– 238 ( 2 0 01); Barnhartv. Walton , 535 U. S. 212, 22 2 (2 002) (n ot in gth at Mead “indic ated tha twhethe r a cou r t sh ou ld giv e [Chev ron] deference de

pen d s insig n i f ic an t par tu p onth e inter p retiv emethod used and the nature of the question at i s sue”).4 NEGUSIE v. HOLDER Opinion of S TEVENS , J. (1987); see also Republic of Austri av. Altmann , 541 U. S. 677, 701–702 (2004). While this phrasing i s peculiar to the adjudic a tory conte x t, the prin ciple applies to Chevro n ’s domain more broadly. In the context of age n cy rulema king, for instance, we might dis t inguish between pure questions of statutory i n terpretati on and policymakin g , or between central legal issues and interstitial questions. See Barnhartv. Walt on , 535 U. S. 212, 222 ( 2002). 3T h e label is immaterial. What matt ers is the p r inciple: Certain aspect s of statutory interp ret a tion remain within th e purview of the courts, even when the statute is not e n tirely clear, while others ar e properly understood as delegated by Congress to an expert a n d accountable administrative body. Statutory language may thus admit of bot h judicial construction a n d agency e x position. II Two of thi s Court’s c a ses construing the Immigration and Nation ality Act (I NA), 66 Stat. 166, 8 U. S. C. §11 0 1 et s e q. , illustrate the proper division of responsibi lity between courts and agencies and highlight when Chevron deference is appropriate and when it is not. In Cardoza

Fonseca , th e question was wheth e r the standard of INA §243(h), 8 U. S. C. §12 53(h) (1982 ed.), whichrequires an alien to show that she is more likely than not to be subject to persecution if she is deporte d, also governs applications for asylum under §208(a), 8 U. S. C. §1158(a) (1982 ed.), which auth o rizes the Attorney Ge neral to grant asylum to an alienwho has a well-founded fear of persec ution in her home count ry. After considering the INA’s language, its legislative history, and the Un ited Nations Protocol t hat

——————

3 The Administrative Procedure Act draws a sim ilar d i stinction in providing that courts “shall decide all relevant questions of law [and] inter p r e t c o nstitut i onal and st atut ory p r ovisions” but shallreview “ag e n c yac tion , fin d ing s , an d c o nc lu sions” u n d erth e arbitr ar yan d
c a pr ic iou s /abu se of disc r e tionstan dar d

. 5 U. S. C. §706.5 Cite as: 55 5 U

. S. ____ (2009) Opinion of S TEVENS , J. Congress h a d implemented, the C o urt determ ined that th e two standards are not the same. I ns oh o l d i n g , w e d e c i s i v e ly rejected the Government’s contention, echoed by J USTICE S CALIA’s concu r rence in the judgment, that the Board of Imm i gration Appeals’ (BIA) interpretati on of the st atute merited deference under our then-recent decision in Chevron

. “The question whethe r Congress intended the two standards to be identical is a pure question of statutory const r uction for t h e courts t o decide,” we stated. 480U. S., at 446. We therefore did not defer to the BIA’s inte rpretation of the two standards as equivalent but instead employedt r aditional tools of stat utory const r uction and “concludedthat Cong ress did not intend the two standar ds to be identical.” Ibid

. 4 Importantly, we recog n ized that Chevron deference nee d not be an a ll-or-nothin gventure. Even after the question of the sta n dards’ 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 interpretati on that arises in each case in whic h the agency is required to apply eit h er or both standards to a parti cu lar set of facts.” 480 U. S., a t4 48. And we noted tha t applying th e INA was a task pa rticularly s u ited to th e agency’s unique competencies: “T here is obviously some ambiguity in a term like ‘well -foun ded fear’ which can on ly

——————

4 J US TI CE S CALIA objected in particular to t h e majority’s holding that pure questions of statutory constructi on are for the courts, not agencies, to dec i de; h ei n sistedth is w a s u n f aith fu l t o Chevron , “since in Chevro n the Cour t def e r r e d to the E n v i r o nmen tal Protection Agency’s abstrac t inter p r e tationof the phr a se ‘ s tation ar ysour c e .’ ” 480 U. S., at 45 5 (opinion conc urrin gin j u dgm e nt). The m a j o rit yreject ed J US TI CE S CALIA’s a r gu m e nt , reco gni z ing t h a t Ch evron in v o lv ed anag enc y ’ s complex policy judgment about how to fill a s t atutory gap, not a pure qu estionof st a t u t or yc o n s tr uc tion

. See 480 U. S., at 445

– 448, an d n

. 29 (quoting extensively from Ch evron).6 NEGUSIE v. HOLDER Opinion of S TEVENS , J. be given concrete meaning th rough a process of case-b ycase adjudication. Inthat process of fi lling ‘ “any gap left, implicitly or explic itly by Congress,” ’ the courts mus t respect the interpretati on of the agency to which Congress has delegated the responsibilityfor administering the statutory program.” Ibid . (quotin g Chev ron , 467 U. S., a t 843, in turn quoting Mortonv. Ruiz , 415 U. S. 199, 231 (1974)). In INS v. Aguirr e-Ag uirre , 526 U. S. 415 (1999), the Court enco untered just the type of agency decision Cardoza-Fonsecaindicate d would wa rrant Chevro n deference. The BIA had denied withholding of deportation because it found that the respondent had “co mmitted a serious non

political crime” before he entered the Unit ed States, 8 U. S. C. §1253(h)(2)(C) (1994 ed.). The Court of Appeals reversed th e agency’s decisionand required it to supplement its balancing test with specific additional factors (such as wh ether the re spondent’s acts were g r ossly out of proportion to their obj e ctive and whether th e acts were politically necessary and successful). We reversed the Cou rt of Ap peals, concluding tha t Chevron de ference should be accorded to the BIA “as it gives ambiguous statutory terms ‘concrete meanin g through a proce ss o f ca se-b y-case a d judi ca tion.’ ” 52 6 U. S. , at 425 (quoting Ca rdoza-Fonsec a , 480 U. S., a t448). The BIA’s form ulation of a test to appl y the s t atutory standa r din 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 t o day is the kind of “pu r e questionof statutory constru ction for the courts to d e cide” thatwe answered in Car doza-Fonseca , id., at 446, rather than a fact-intensive ques t ion of the kind we addressed in Aguirr e-Ag uirre

. Just as we decidedCite as: 55 5 U

. S. ____ (2009) 7 Opinion of S TEVENS , J. the narrow legal ques t ion presen ted in Car doza-Fonseca but did not“attempt t o set fo rth a detailed description of how the ‘well-foundedfear’ test should be applied,” 480 U. S., at 448, I would decide the narrow legal q u estion now before us and remand for the agency to deter m ine 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 as ylum or wi thholding of removal a n 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 n o t govern our interpretati on of the pe rsecutor ba r, the differences the Court highlights between the Displ a ced Persons Act of 1948 (DPA), 62 Stat. 1009, and the Refugee Act of 1980, 94 Stat. 102, only strengthen my conclusion th at voluntarya ssistance in persecuti o n is required and th at duress and coercion vitiate voluntariness. The FedorenkoCourt’s constructio nof the DPA threatened to exclude from the Unite dStates concentration camp prisoners who were forced to assist the Nazis in the

——————

5 The major i ty sug g e sts thatthis a pproach is inconsist e nt with the “ ‘ o r d in ar y“r eman d” r u le’ ” ar tic u lated in Gonzalesv. Th o m as , 547 U. S. 183 ( 200 6) (per c u riam ) , a n d INS v. Or lando V e ntu ra , 537 U. S. 12 (200 2) (per curiam )

. Ante, at 11– 12. Bu t th ose c a se s i n v o lv ed ex ac tly the sort of application of law to fact that is within the age n cy ’s purv iew. In Thomas , the Cour t of Appeals dec i ded that the fam i l yat issue “fel l within the scope of the statutory t e rm‘pa r t i cula r s o cial group.’ ” 5 47 U. S., at 185. We n o ted th atth e BIA h a d n o t c o n s ider ed th is qu estion , which “r eq uir e [d] det e rm ining t h e fa ct s and deciding whet her t h e fa ct s as found f[e]ll within a statutory term.” Id. , at 186. Ac c o r d ingl y , we held that the c o ur t should hav er e ma nded to the agency. Similarly, in Vent ura , the Court of Appe als addressed an issue that the BIA had no t
r e ac h e d an d c o n c lu ded th at c o n d ition s inGu atemal a h a d so impr ov ed t h a tno rea l ist i c t h rea tof pers ecut ion cu r r ent l y exis t e d. The Govern

ment ar g u ed that the c o ur t had not r e spec ted “the BI A’ s r o le as f a c t

finder,” 537 U. S ., at 16, and we agreed, revers ing t h e co urt ’ s j u dgm e nt insofaras it had not r e manded to the ag enc y
.8 NEGUSIE v. HOLDER Opinion of S TEVENS , J. persecution of other prisoners. Inmy view, this construction was insupportable—the DPA’s exclusion of persons who “assisted the enemy in persecuting civil populations , ” Constitution of the International Refugee Organiza tion, Annex I, Part II, §2 (a ) , 62 Stat. 3051, did n o t extend to concentration camp prisoners who did so involuntarily. These priso n ers were victims, not persecutors. Without an exception for involuntary a ction, the Refugee Act’s ba r would similarly treat entire classes of victims as persecut ors. The Act does not support suc ha reading

. The language of the persecutor bar is most naturally read to denote culpable conduct, andt h is reading is powerfully supported b ythe statutory context and legislative history. As this Court has pr eviously recognized—a nd as the majority acknowledges agai n today—Congress passed th e 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. 625 9, and the 1 967 United Nations Pro t ocol Relating to the Status of Refugees, J an. 31, 196 7, [1968] 1 9 U. S. T. 6223, T. I. A. S. No. 657 7 (hereinaf ter Protocol). These treaties place a mandat ory obligation on signatory states not t o “expel or return (‘refouler’) a refugee in any manner whatsoever to .

. . territories where his life or freedom would be thre atened on a ccount of hi s race, relig

ion, nation a lity, mem b ership of a particular social group or political opinion.” Convention, Art. 33(1), 1 9 U. S. T., a t 6276; Protocol, Art. I, 19 U. S. T., at 6225. The Refugee Act’s withholding of removal provision specif ically 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 refl ects our legal obligations under international agreements,” specifically Convention Article 33). 6

——————

6 A s yluma n d wit hholding of rem o va l a ddr es s concerns different from those addressed by the Con v ention Aga i ns t Torture a n d Other Cruel,9 Cite as: 55 5 U

. S. ____ (2009) Opinion of S TEVENS , 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 .

. . providedin the Conv ention relating to aliens who have themselves participate d in persec ution”); H. R. Conf. Rep. No. 96–781, p. 20 (1980). The lan guage of the Convention’s exception is critical: We do not normall y convict indi viduals of crime swhe ntheir actions are coerced or otherwise involuntary. Indeed, the United Nations H andbook , to which the Court has look ed for guidance in the past, states that all relevant facto rs, including “mitigatingcircumsta n ces,” 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 H i gh Commissioner for Refugees, H andbook on Procedures and Criteria for Determining Refugee Status ¶¶157, 162 (reedited Jan. 1992). Other state s parties to the Convention and P r otocol lik e w ise read the Convention’s excep t ion as limited to culpa b le conduct. 7 When we

—————— Inhuma n , orDegra d ing Trea tment orPunis h ment (CAT) a n d its implemen t i n gr e g u lation s. CAT, Dec

. 10, 198 4, S. Tr eat yDoc. No. 100– 20 (1 98 8), 146 5 U. N. T. S. 85; 8 CF R §§1 208.1 6

– 120 8.1 8(20 08). Th e CAT prohib it s a s t a t e pa rt y fromret u rning a n y pers on t oa count ry wherethere issubstanti a l reason to belie v ehe migh t b etor t ur ed, but it s definit i on of t o rt ure cover s a na rrower c l a s s of ha rms , im pos e d b y a na rrowe r cla s s of a c t o rs , t h a nt h e as yluma n d wit h olding of rem o val provisions. Most i m portant l y, the CATl i m its its def i ni tion of torture to ac ts “inflic ted byorat the instigat ion of or withthe c o nsent orac quiescenceof apub lic officia lor o t her pers ona c t i ng in a nofficia lca pa cit y ,” Pt. I, Ar t. 1, ¶1, p. 19, wh ile asy l u m an d with h o ldin gof r e mov a l ar e available to victims of harm inflicte d bypr iv ate ac tor s , with ou t r e g a rd to state involvement, see, e.g ., In re Kasi nga , 21 I. & N. Dec

. 357, 36 5 (BIA 19 96); In re H —, 21 I. & N. Dec. 337, 343– 34 4 (BIA 1996). 7 See, e. g. , Canadav. As gh edom , [2001] F. C. T. 972, ¶28 (Can . Fed. Ct.); Guru ng v. Sec reta r y of State for Hom eDept. , [2002] UKIAT 48 7 0 ,10 NEGUSIE v. HOLDER Opinion of S TEVENS , J. interpret tr eaties, we consider the interpretations of the courts of other nations , and we sh ould do the same when Congress asks us to interpret astatute inlight of a treaty’s language. See Zicherm anv. Korean A i r Line s 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 intend ed the persecutor bar to apply only to culpable, voluntary acts—and i t underscores that Congress did not delegate the question presented by this case to the agency. While I would hold that the persecutor ba r does not automatically disqualify from asylum or withholding of removal analienwho acted involuntarily, 8I would leave for the Attorney Gene ral—and, through his own delegation, the BIA—the question howthe voluntariness standard should be applied. The agency would retain th e ability, for instance, to define duress and coercion; to determine whether or not a balan cing test should be employed; and, of course, to decide whether an y individua l asylum-seeker’s a cts were cove re d by the persecutor ba r. Those are the sorts o f questions suited to the agency’s unique co mpetencies in admin i stering the INA. T h e threshold question before the Court is not.

—————— ¶¶108– 11 0 (U

. K. Immigr . App. Tr ib.); SRYYY v. Mini st er for Im m i gration & M u lti c ultu ral & I ndige nou sAff a irs , [2005] 147 F. C. R. 1, ¶¶126– 12 8 (Au s tl. Fed. C t .); Refu g ee Appeal No. 21 42 /94, pp. 12– 1 4 (N. Z. RefugeeS t atus App. Auth., Mar. 20, 199 7). No tion s of c u lpab ili ty h av ed e e p r o o t s i na s y l u ml a w
. S ee gene rally 2 H. Gro t ius, De Jure Belli ac Pacis Libri Tres ch. XXI, §V(1), p. 530 (J

. Scot t ed., F. Kelsey et al. tr an sl., 19 25) ( “ [P]la c es of asy l u m wer eav ailab l e [inan c i en t times] fortho s e fr om whose hands ac h anc emiss ile hadsla i n aman ” and forthose with “innoc e nt” minds).

8 Other co ns idera t ions that are not pr esented in this case , such as an alien’s lack of knowledge that he was i n volved in a persecutory a c t, could likewise indicate that he did not ac t with the r e qu isite c u lpabi l

ity. See, e.g
. , Castañeda-Castillo v. Gonza les , 488 F. 3d 17, 20 –2 2 (CA 1 200 7) (enban c ) ; Hernandez v. Reno , 258 F. 3d 806, 8 14 (C A8 20 01).11 Cite as: 55 5 U

. S. ____ (2009) Opinion of S TEVENS , J. IV Because I r e main convinced that t h e narrowe r interpretation of Chevron e n dorsed bythe Cour tin Ca rdozaFonseca wa s more faithful to the rationale of that case than the broader view the Court a d opts today, I am unable to join its opinion. I would answer the question of law that this case presents with an unequiv o cal “no” and remand to the agency for further proceedings._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–4 99
DANIE LGI RMAI NE GUSIE, PE T I TIONER v. ERIC H. HOLDER, J R ., ATT O RN EY GE NERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [M ar c h3, 2009] J USTICE T HOMA S , dissenting.The “persecutor bar” in the Immigration and Nationality Act (INA) denies asylum and the wi thholding of re

moval to any alien who has “ord ered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nation a lity, membership in a particular social group, or political opinion

. ” 8 U. S. C. §§1101(a)(4 2), 1158(b)(2)(A), 1231(b)(3)(B)(i). The Boar d of Immigration Appeals (BIA), principally relying on this Court’s decision in Fedorenkov. United S t a t es , 449 U. S. 490 (1981), held that the statut e does not require that the persecution be volunta r ily inflicted. The Court of Appeal s for the Fifth Circuit af firmed. Accordin g t o the Court , Fedorenko , which construed th e similar text of a persec ution bar in the Displaced Persons Act of 194 8 (DPA), is largely irrelevant to the question presented here. See ante , at 6–8, 9 –10; see als o ante , at 2 (S CALI A , J., concurring). The majority further holds that the INA is ambiguous as to “whether coercion or duress is relevant in determining if an alien assistedor otherwise participate d in persecution” and that the ag ency, therefore, should interpret t h e statute in the firstinstance t o determine whether it reasonably can be read to include a voluntariness requirement. Ante , at 5, 10–12; see also ante , a t1 (S CALI A , J., concurring). I disagree with both of2 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g these conclusions. Because the INA unambiguously precludes any inquiry i n to whethe r the pers ecutor acte d voluntarily, i.e. , free from coercion or dure ss, I woul d affirm the j u dgment of the Courtof Appeals. I respectfully dissent. IPetitioner Daniel Girmai Negusie testified to the Immigration Judge (IJ) that he wa s forced to work as an armed guard for four years at an Eritrean prisoncamp where prisoners were persecuted because of thei r religious beliefs. Accor d ing to petitioner, part of his job was “to firmly control the prisoners, to punishthe priso n ers, too, by exposing th em” to the extreme h e at of the African su n. App. 58. The guards “would .

. . hold [a] stick [with] thei r hand” and follow prisoners who were being f o rced to “roll on the ground in the sun.” Id. , at 23. Be cause “it was extremely hot,” prisoners would quickly “g et tired an d [feel] shortness of breath and stop” rolling. Id., at 24. They were then beat en. Prisoners typica lly could n o t survive this punishment for more than two ho urs. Indeed, at least on e prisoner died from sun exposure while petitioner stoodguard. See ante , at 3 (majority opinion). Petitioner testified that, as a gua r d, he prevented the prisoners from showeri n g and forbade them from leaving their rooms for fresh air. This form of punishment was particularlysevere because the prisons were “built from stone and brick s ” with “no cooling system, no ventilation, no windows , ” and intolerable heat. App. 20, 3 0

. Petitioner also prevented prisoner escapes, for which the punishme nt was forced sun exposure. And, alt h ough petit i oner never used “electricity to tort ure” prisoners, he was aware that his supervisor did. Id., at 61–62. But petitio n er, who had conver ted to Pro t estantism when he was confinedas aprisoner at the camp, als o testified that he did not want to persecute any of th e3 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g 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 l e t female pris oners tak e showers after they had been den i e d that privile ge “for a long time.” Id., at 37. Petitioner also occasionallyallowed 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 prisonguar d, petitioner deserted his post, s w am to a shipping container, and hid inside. See ante , at 3 (majority opinion). The container arrived in the United States with petiti oner inside on December 20, 2004. Petitioner applied for asyl um and the withholding of removal under the INA, 8 U. S. C. §1101 et seq. He als o applied for protection under the Convention Against Torture and Other Cruel, Inhuman, or Degra d ing Treatmen t or Punishment (CAT), under which it is “the policy of th e United States not to e x pel, extradite, or otherwise effect the involuntary return of any pers on to a country in whi c h there are substantial grounds for believing the person would be indanger of being s ubjected to tortur e .” Foreign Affairs Reform and Restructurin gAct of 19 98, §2242(a), 112 Stat. 2 681–822, note followin g8 U. S. C. §1231, p. 263 (United Sta t es Policy with Re spect to Involuntary Retur n of Persons in Danger of Subjection to Torture (hereinafter CAT Policy)). See als o CAT, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 85. Petitioner feared that, if returned to Eritrea, h e would “be executed” because he had converted to Prote s tant ism and deserted his military post. App. 65, 68. The INA provides the Executive with the discretion to grant asylum to ali e ns that are “unable or unwilling” to return to t h eir home country “bec ause of persecution or a well-founded fear of persecutio n on account o f race, relig

ion, nation a lity, membership in a particular social group,4 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g

or politica lopinion.” 8U. S. C. §§11 01(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, membershi p in a parti cular socialgroup, or political opin

ion.” §1231(b)(3)(A). Howe ver, the INA prohibits the Executive from granti n g asylum or withholding removal if an alien “ordered, incited, assisted, or otherwise partici

pated in the persecution” of an y person on account of “race, religion, nation a lity, membership in a particular social group, or political opinion. ” §1158(b)(2)(A)(i) (asylum); §123 1(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 wher e there are substantial grounds for believing that he wou l d be in dang er of being subjected to torture,” Art. 3, S. Treaty Doc. No. 100–20, at 20, regulations implementing that conve n tion provide “deferral of remov a l” to aliens subject to the INA persecutor bar who would more lik el y than not be tortu red if remo ved to their home country. 1 8 CFR §§1208.16(c)(4), (d)(2), 1208.17(a) (2008); see alsoCAT Policy (b), at 263 (requiring federal agencies to “prescribe regulations to implementthe obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos

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1 “ D eferra l of rem o va l” w a s c r ea t e d t o a ccom m o dat eCon gres s ’ direction to exclude those who fall withinthe INA per s ec ut orbar“[t]o th e max i mum ex t e nt c o nsistentwith the o b li gations of the United State s under the [CAT]” to not return a na lien to acountry in w h ich he or s h e will be tortured. CATPol i cy (c), at 26 3. To accomplish tha tgo al, deferral of removal provides “a less perma n entformof protection than withholding of removal and one that is more easily and quickly termi

nated if it bec o mes pos s ible to r e mov ethe alien c o nsiste nt with Ar tic l e 3” of th e C AT , 64 Fed. Reg

. 8480 ( 1 9 99), wh ile also “e n s u r [in g] th at [s uch a liens ] a r e not returned to acountry where the ywould b etortur e d,” id.  ̧ at 848 1.5 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g contained in the United States Senate resolution of ratification of the Convention”). The IJ den i ed petition er’s applica t ions for as ylum an d the withholding of removal, but granted hi m deferral of removal. The BIA affirmed. In their view, petitioner’s conduct objectively qualified as assistance orparticipati on in the persecution of others based on religion. See ante , a t 3 (majority opinion). Relying on Fedorenko , the IJ and BIA found that even if petitioner was “comp elled to participate as a prison gu ard” against his wishes , his “motiv a tion and in tent are irrelevant to t h e issu e of whether he ‘assisted’ in persecution.” Ibid. (some internal quotation mark s omitted). Therefore, petitioner was ineligible fo r asylum or the withholding of remo val under the INA. The IJ and BIA agreed, however, that petitioner qualified f o r deferral of removal because it is “more likely than not th at he would be tortured” if return ed to Eritrea given that its “governmen t has used deadly forc e and threa t ened to us e deadly forc e against deserters.” App. to Pet. for Cert. 7a– 8a, 20a, 19a. The Court of Appeal s affirmed. See Negusi e v. Gonzale s , 231 Fed. Appx. 325 , 326 (CA5 2007) (per curiam). II As with all statutory in te rpretatio nquestions, construction of the I NA’s persecutor bar must begin with the plai n language of the statute. See Jimenez v. Qua r term an , 555 U. S. ___, ___ (2009) (s lip op., at 5) (citing La miev. Uni t ed Sta t es Tru s tee , 540 U. S. 526, 534 (2004)). If the text of a statute governing age n cy action “ ‘directly addresse[s] the precise question at iss u e,’ ” then, “ ‘that is the end of the matter; forthe court, as well as the agenc y , must gi veeffect to the unambiguously expressed intent of Congress.’ ” National Assn. of H o meBuildersv. Defenders of Wildlife , 55 1 U. S. 664, ___ (2007) (slip op., at 18) (quotin g6 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g Chevron U. S. A. Inc. v. Natu ral R esource s Defense Coun

cil, Inc. , 467 U. S. 837, 842–843 (1984)). A A courtm u st first “look to the particularstatutor y language at issue.” K mart Corp. v. Cartier, Inc. , 486 U. S. 281, 291 (1 988). As t h e majority acknowledges, see ante , at 5–6, the text of th e INA’s persecutor ba r neither includes the term “voluntary” nor co ntains an exception for involuntary, coerced co nduct. The statute instead applies to anyalien “who ordered, incited, assisted, or otherwise participate d in the persecution of any person” on account of a protected groun d

. §§1101 (a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). The statute ’ s key term s also do not imply an y 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, th e act of perse c ution alone is sufficient to classif yone’s conduct as persecution. S ee Webster’s Ninth New Collegiate Dictionary 877 (1991) (hereinafter Webster’s Ninth) (defining “persec u tion” as “the act or pr actice of persecuting esp. those who differ in ori gin, religio n, or social outlook”); see also Web s ter’s New Collegiate Dictionary 855 (1975) (hereinafter Webster’s) (same). The term itself includes no intrinsic me ns rearequirement. As a result, an individual can “persecute”—meaning “harass in a mann er designed to injure, grieve, or afflict”—wi thout having d e signed the act or intended for injury, grie f, or affliction to occur. Webster’s Ninth 877; see als o Webster’s 855 (same). The persecutor bar’s inclusion of those who “assist” or “participa te” confirms t hat it does not include a voluntari

ness requir e ment. The term “assi st” 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 ) (hereinaf­7 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g ter Blac k’s) (defining “assist” as “[t] o help; aid; succor; lend countenance or encou r agement to; participate in as a n auxiliary”). And “participate” means simply “to take part,” Webster’s Ninth 858, or “to have a share, to take pa rt i n something,” Oxford 487; see als oBlack’s 1007 (defining “participa te” as “[t]o receive or have a part or share of; to parta ke of; experience in common with others ; to have or enjoy a par tor share in common with others ”). Accor d

ingly, this Court has concluded that the ordinary meanings of “assist” and “partici pate” do not “connote voluntariness.” Pennsylvan i a De pt. of Corre ctionsv. Ye skey , 5 24 U. S. 206, 211 (1998) (p articipate); see a l so Fedorenko , 44 9 U. S., at 51 2 (assist). These are “terms and concepts o f breadth,” Russellov. United S t a t es , 464 U. S. 16, 21–22 (1983), that require only that a nindividual take “ so m e part in” an activity, or help it to oc cur in some way. Reves
v. Ern s t & Young , 507 U. S. 170, 178–179 (1993) (emphasis in original). Even if partici p ation or assistance is coerced, it remains participation or assistance just the
same. B In addition to the parti cular statut ory section of the INA before the Court, “the language a n d design of the statute as a whole” is instructive in dete rmining the provision’s plain mean ing. K mart Corp., supra , at 2 91; see als o Amoco Production Co. v. Gambell , 480 U. S. 531, 552–5 5 3 (1987). Here, the INA’s design and structure buttress th e conclusion that the pe rsecutorba r applies ir respective of voluntariness. First, Congress has evi d enced its ability to both specifically require voluntary cond uct and explicitly exclude involuntary conduct in other provisions of th e INA. See infra , at 15 –16. For example, Congress has b a rred admi ssion to the United States of totalitarian party members unless their membership was “i nvoluntary, ” 8 U. S. C.8 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g §1182(a)(3)(D)(ii), and i thas provi d ed for the termination of asylum when an alien “has voluntarily availed hims elf or herself” of another country’s protections, §1158(c)(2)(D). “[W]here Congress includes particular language in one section of astatute bu t omits it i nanother s e ction of th e same Act, it is generally presumed that Congress a cts intentionally and purposely inthe disparate inclusionor exclusion.” Russello, supra , at 23 (internal quotation mark s omitted); see, e.g. , Barnh a r tv. Si gmon Coal Co. , 534 U. S. 4 38, 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 sp ecified aliens who have both suffered from an d inflicted persecution. Those who have been persecuted and have not engaged in persecution may receive both asylum and the withholding of removal. §§12 31(b)(3)(A), 1158(b)(1)(A). Those at th e other end of the spectrum, who have not been persecuted but have persecuted others, may not receive either asylum
or the withholding of removal. §§12 31(b)(3)(B)(i), 1158(b)(2)(A)(i). And finally, f o r many individuals who (lik e petitioner) have both persecuted others and be en persecuted, the schem e provides temporary refuge; they will receive deferral of removal under the CAT if they will face torture upon their returnto th eir home country. C AT Policy (a), at 263; see also 8 CFR §§1208.1 3 (a), 1208.16(d)(2).

Where “Congress has enacted a comprehensive schemeand has deliberately targeted specific problems with specific solutions,” courts shou ld not read one part of the legislative regime (the INA) to provide a different, an d conflicting, solution to a problem that has already be en specifically addressed els e where in the fed e ral immigr ation regime(regulations implemen ting the CAT). Varity Corp. v. Howe , 516 U. S. 489, 519 (1996) (T HOMAS , J

. ,9 Cite as: 55 5 U

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T HOMAS , J. , dissen t in g dissenting); see als oTransame ricaMortga ge Advisors, I n c. v. Lewis , 4 44 U. S. 11, 19 (1979). Federal law provide s only partial protection to a victim of persecution who has also engaged in persecution, voluntarily or not. There simply is no justification for writi n g into the INA’s perse

cutor bar the greater protections of asylum and the withholding of removal for indivi duals who were coerced into engaging in persecution. That is, the “as s umption of inadvertent omission” of a volunt ariness req u irement in the INA “is rendered especially suspect upon close consid

eration of [a statute’s] interlocking, inte rrelated, and interdependent remedial scheme” that a d dresses the specific problem at iss u e in a conflicting way. Massa ch u setts Mu t. Life Ins. Co

. v. Russell , 473 U. S. 134, 146–147 (1985). 2 C Finally, Congress is aware of a judicial inter p retation of statutory la nguage and “adopt[s] that interpretation when it re-enacts a statu t e without cha n ge.” Lo ril lardv. Pon s , 434 U. S. 575, 580 (19 78); see als o Traynor v. Turna ge , 485 U. S. 5 35, 546 (1988); 2B N. Singer & J. Singer, Suth

erland on Statutory Construction §49.9, pp. 1 27–133 (7th

——————

2 It also is i m p o r t an t to ac kn owledg e that the object of the INA is to codify Congres s ’ policy decisions “ ‘per tainingto the entryof aliens an d theirr i gh t to r e main’ ” in the Un ited States—decisions that are “ ‘en

tr usted ex c l usiv elyto Congress.’ ” Kleindi enstv. Man d el , 408 U. S. 753 , 766, 7 67 ( 1 9 72) (qu o t i n g Galvanv. P ress , 347 U. S. 522, 531 –5 3 2 (195 4)). Infa c t , “ov e rn oc o n c eiv abl e subject is the legi slative power of Congr e ss more c o mplete than it is over”the decision of Congress t o admi t or to ex clude aliens. Oceani c Stea m Nav. Co. v. Stranahan , 214 U. S. 320, 33 9 (1909). Cou r ts th er efor e mu st en for c ethe immigr ation polic ydec i sionr e flec ted ina sta t u t e’ s plainter m s, ev enif Con gr e ss h a s chosen “to forbid the entrance of forei g ners wit h init s dom i nions” altog e ther , Fo ng Yue Ti ng v. United States , 149 U. S. 6 98, 7 0 5 (1 893)

. Likewis e , her e , where Con gres s has made a judgment about which per s ons to ad mit and ex c l ude fr om the c o untr y , it is not forthis Cour t to question the wisdom of that choice.10 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g ed. 2008). Here, the statutory and decisional backdrop against whi c h Congress enacted the INA’s persecutor ba r counsels a g ainst grafting a voluntariness requirement onto the statute. When Congress enacted the INA’s persecu t or bar, it essentially retained the language used in si milar predecessor statutes. Under the 1948 DPA persecutor bar, entry was denied toall who “ ‘assisted the en e m y in perse

cuting civil[ ians].’ ” Fedorenko , 449 U. S., at 495 (quotin g 62 Stat. 3051). In 195 0, Congress added a second persecutor bar to t h e DPA tha tapplied “t o any person who advo

cated or ass i sted in the persecution of any pe rson because of race, religion, or nat ional origin.” §13, 64 Stat. 227. In the years that followed, Congres s continued to use this same broad language in denying a s ylum to specific categories of persecutors. See, e.g. , §105 , 91 Stat. 1 224 (denyin g permanent residence to aliens from Vietnam, Laos, an d Cambodia “who ordered, assiste d , or other w ise participated in the persecution of any person bec ause of race, religion, orpolitical 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 h a d “ordered , incited, assi sted, or oth e rwise participated in the persecution of any person because of race, religion, national origin, or political opinion”); §14(a), 67 Sta t . 4 06 (imposing persecutor bar on “any person who personally advocated o r assisted inthe perse c ution of .

. . [a] grou p of perso n s because of r a ce, religion, or nation a l origin”). Congress then enacted the INA bar in 1980

. This statute comprehensively labeled as apersecutor “any person who ordered, incited, assisted, or otherwise participated i n the persecu t ion of any person on account of ra ce, religion, nationality, membersh ip in a particular social group, or political opinion.” §2 01(a), 94 Stat. 102–103. Congre ss reenacted the INA’s persecutor bar in 1996 and retained its breadth. See Illegal Immigration Reform and Immi­Cite as: 55 5 U

. S. ____ (2009) 11

T HOMAS , J. , dissen t in g grant Responsibility Act of 1996 (IIRIRA), §§305(b)(3)( B)(i), 601(a)(1), 604(b)(2)(A)(i), 110 Stat. 3009– 602, 689, 69 1. Congress’ uninterrupted use of this broad statutory language, which paral l els the persecutor bars dating ba ck to 1948, wa s not accide ntal. By th e time of th e 1996 reenactment, th is Court ha d specifically interp ret e d the plain language of the predecessor bars to apply regardless of the voluntariness of a persecutor’s co nduct. See Fedorenko, supra , at 5 12 (1948 DPA bar); see also United Sta t es v. Koreh , 59 F. 3d 431, 439 (CA3 1995) (1950 DPA bar); United S t a t es v. Schmi d t , 923 F. 2d 1253, 125 8 (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, th is Court had held that the phrase in the 1948 DPA bar, “assisted the enemy in persecuting civil[ians],” containe d no “ ‘involuntary assis t ance’ exce ption.” Fedorenko, 449 U. S., at 512. Rather, the statute’s “plain lan guage” made clear that “ an individual’s service as a concentration cam p armed gua r d—whether voluntary or involuntary—ma de him ineligib le for a visa .” Ibid. In light of this legal backdrop, Congress’ decisions in 1980 and 1996 to retain a persecutor bar that broadl y applies to anyone who “assisted, or otherwise participate d in the persecution” of any person, §§1158(b)(2)(A)(i) , 1231(b)(3)(B), is significant evidence that Co ngress did not intend to include any i nvoluntariness exception in the INA bar. This Court must assume, absent textua l proof to the contrar y , th at Congress was awa r e of the Fed o renko decision whenit reenac ted the persecutor bar and thus “adopt[ed] that interp retation when it re-enact[ed the ] statute without change,” Lorillard , supra, at 580. D In sum, the INA’s pers ecutor bar does not require that12 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g assistance or participa tion in persecution be voluntary o r uncoerced t o fall within the statu t e’s reach. It instead“mandates precisely” what it says: “[A]n individual’s service as a [prison] camp ar med gua r d—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 anoth er person on account of a protected ground. Fedorenk o , supra , at 512. He re, it is undisputed th at petition er served at a prison cam p wher e guards persecuted prisoners becauseof their religious b e l i efs. See ante , at 2– 3 (majority o p inion). It also is undisputed that petitioner carried outthe persecution bypreventing prisoners fro m escaping a n d by stan ding gua r d while at l e ast one prisoner died from sun exposure. Ibid

. Petitioner, therefore , “assisted, or otherwise partici pated” in pers ecution an d thus is statutorily disqualified fr om receiving asylum or withholding of removal under the INA. 3

——————

3 J US TI CE S TEVENS a l s o finds the la ngua ge of the INA’s pe rsecutor bar “plain,” but c o ncludes th at it mu st in c o r p or ate a c u lpabil i tyr e qu ir ement b e ca us e the s t a t ute applies to those whose “acts are of a ‘criminal
na ture.’ ” See ante , at 7, 9 (opin i onc o nc ur rin gin par tan d dissen t in gin part). I disag r ee. Thedecision to admit a nalien is a m a tterof legi sla

t ive gra c e, s e en. 2 , supra , f o r which judicial review has been “consistentlyc l as sifi ed” a s c iv il i nnatur e , Harisiadesv. Shaughnessy , 342 U. S. 580, 59 4(195 2); see al so Zadvydas v. Davi s , 533 U. S. 678, 72 0 (200 1) (K ENNEDY , J., dissenting) (e xplai n ing that “ ‘an alien seeking initial adm i ss i o n to the United Sta t es req u ests a privile ge and has no
c o nstitutional r i gh ts r e g a r d i n ghis applic ation, forthe p o werto admit or exclude aliens is a sov e reign pre r ogative’ ” (quoti ng Lando nv. Plasen cia , 459 U. S. 21, 32 (198 2))). Th ere is no warrant to read criminal-law requirements i n to a stat ute that is “nonp unitiv ein purpose andeffect.” Zadvydas, supra , a t69 0

. Furt her, t h e conclus o ry pronouncement in the Office of th e United Nations High Commi ssioner for Refugees’ Handbook on Procedur es and Criteria fo r Determining Refu g ee Statu s ¶16 2 (r eedit ed Jan . 1 9 9 2 ), th at “ith a s t obe a ssu med, althoughthis is not spec ifi c allysta t ed, t h at the ac t s c o v e r e d bythe pr esen t c l au se mu st also b eof a c r i minal natur e ,” is insuffic i ent to require criminal proof to deny withholding of re m o va l, cont ra , ante , a t13 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g III The majority neverthe l ess concludes the statute’s “silence,” ante, at 6, creates ambiguity, and therefore remands the case to the BIA for it t o 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 (2 001) (S CALI A , J., dissenting). The majority principal l y finds ambiguity in the statutory text be cause it does not include either th e word “voluntary” or the word “i nvoluntary. ” See ante , at 7. But a statute cannot be deemed ambiguous until the court “exhaust[s] the aid of the ‘traditional tools of statutory con

struction’ ” and determines that Congress did not resolv e the issue under consideration. Clarkv. Martin ez , 543 U. S. 371, 402 (2005) (T HOMAS , J., dissenting) (quoting Chevron , 4 67 U. S., at 843, n. 9). Deeming a statute wi th broad terms to be amb i guous for that reason alone essen tially requires Congress either to obey a judici ally imposed clear-statement rule or accept the risk that t h e courts may refuse to give full effec tto a statute’s plain meaning in the name of Ch evrondeference. Not e v ery difficult question of statutory construction amounts to a statuto r y gap for a federal agency to fill. See ant e , at 1– 4 (opinionof S TEVE NS , J

. ). And the Court should not, “in the name of deference, abdicate its responsibility to inter p ret a sta t

ute” simply because it requires some effort. Global Cross

ing Tele co mmunicatio n s, Inc. v. Metrophones Telecommu

nications, Inc. , 550 U. S. 45, 77 (2007) (T HOMAS , J., dissenting).

—————— 9–1 0 (opin i onof S TEVENS , J.). The United Nations handbook “is no t binding on the Attorney General, the BIA, or United States courts. ” INS v. A g ui rre -Agui rre , 526 U. S. 415, 427 (199 9).14NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g The majority makes no attemp t to apply the “t raditional tools of statutoryconstruction” to the persec utor bar be

fore retreat ing to ambiguity. See ante , a t5– 6. Rather, it merely observes that Congress could have spoken more directly to t h e issue, which it finds sufficient to render the statute ambiguous onthis score. Ante , at 6. But the absence of a phrase specifying tha tthe provision applies to both involuntary and voluntary conduct is n o t definitive proof of ambiguity. Itis certainly correc tt hat Congre ss
“ ‘could have spok en in clearer terms,’ ” Clark , 543 U. S., a t 402 (T HOMAS , J., dissenting), as it almost always can in any statute

. However, this “prove s nothing” in evaluating whether th e statute is ambiguou s. Ibid. The question before the Court inste a d is wheth e r Congress has provid ed an unambiguous ans wer in the plain lan guage that it chose to use. Here, for the reasons just explained, the traditional tools of statutoryin terpretatio nshow wi th “utmost cla r ity,” St. C y r, supra , at 329, tha tthe statu t e applies regardless of the voluntariness of th e alien wh o participates or assists in persecution. 4 The majority also finds ambiguity based on differences between the INA and the DPA st a t utory ba r considered in Fedorenko

. In particular, the majority points to the Fe

dorenko Court’s reliance on a second par t of the DPA persecutor bar, which applied to those who “ ‘ voluntarily

——————

4 Beca us e this Court s h ould not dele g a te t h e inter p r e tation of the per s ec u t orbar’ s plainmean i n gto a feder a lag en cy , see Bo a r dof G o v e r nors, FRS v. Dimensio n Fi nancial Corp. , 474 U. S. 361, 368 ( 198 6), it i s largely irrelevant whether the BIA prop erly relied on Fedore nk o v. United Sta t es, 449 U. S. 49 0 (19 81), in interpreting th e statute, se e ante , at 9–1 1 (major ityopin ion) ; ante , at 2 (S CALIA , J., conc urri ng). I n a n y eve n t , t h eBIA’s cons t r u c t i on of t h eI NA’s pers ecut or b a rco rre ct ly
r e flec ted the tex tof the pr ov ision. T h e r ei s n or e a s o nt or e m a n dt h e question to the agency when only o n e constructi on of the statute i s permissible and the agency’s origi n al decision adopted that proper construction. See National Cab le & Telecom m uni ca tions As s n
. v. Brand X Int e r n et Servi c e s , 5 45 U. S. 967, 9 82– 98 5 (200 5).15 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g assisted th e enemy f o rces .
. . in their operations again s t the United Nations.’ ” 449 U. S., a t495, and n. 3 (quoting 62 Stat. 3052; emphas is added). The Court noted that “[u]nder traditional p r inciples of statutory constructio n , the deliberate omission of the word ‘voluntary’ from §2(a),” which addressed the assistance of persecution—but not from §2(b)

—“compel[led] the con c lusion tha tthe statute made all those who assisted in the persecution of civilians ineligibl e for visas.” Id

. , at 512. According to the majority, because the INA persecutor bar, unlike the DPA ba r, does not include a provision limitedby the word “voluntarily” adjacent to the provision tha tis not s o limited, the absence of the adverb here cannot carry the significance given it in Fedorenko

. See ante , a t7. The majority’s reasoning is flawed. The mer e fact tha t the INA’s persecutor bar is not accompanied by a neighboring provision contai ning the word “voluntarily” does not negate the significance of the term’s absence when other INA provisions are explicitly limited to actions undertakenvoluntarily. As noted above, see supra, at 7, the INA im poses avol untariness requiremen tin a h o st o f statutory provisions, s ee, e.g. , 8 U. S. C. §1158(c)(2)(D) (terminating asylum when alien h a s “voluntarily” availed himself of the protection of his coun try); §§1182(a)(3 )(D)(i)–(ii) (denying admission an d naturalization to those who have been memb ers of, or affiliated with, “the Comm unist or any other totalitarian party” unless that membership or affiliation was “involuntary”); §1182(d)(3)(B)(i) (denying admission to thos e who have “voluntarily and k n owingly” engaged in, endorsed, espoused, or persuaded others to endorse, espouse, or support terrori st activity); §1229c (a)(1) (allowin gan alien to “voluntarily” depart the United Sta t es); §§1424(a), (d) (precludingnaturalization for members of certain totalitarian parties, unles s membership was “in v oluntary”); §1481(a) (providing for loss of nationality by “voluntarily”16 NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g performingcertain sp ecified acts with the intention of relinquishing nationality). 5 In the im migration and naturalization context, then, Congress is certainly c a pable of declaring its preference for a voluntariness requirement

. That Congress’ explicit references to voluntariness appe ar in other sections of thi s particular s t atutory scheme, rather than in s ubsections of §§1158 or 1 231, is im material. Cf. Rusello, 464 U. S., at 23; Barnhart , 534 U. S., at 452– 454. And the fact th a t Congress, in the cours e of making stru ctura l revisions to the statuto r y regime, eliminated the specific dichotomy the Court noted in F e dorenkodoes n o t un dermine the critical point: The INA expre ssly includes a voluntariness requiremen tin severalplaces but does not impose such a requiremen tin the persecution ba r. Thus, the omiss i on of the word“v oluntarily” from the pe rsecutor ba r in the INA is just as c o nclusive a s its omi ssi on from th e persecutor bar in the DPA. With respect to both statutes, the deliberate omiss i on “compel s the concl u sion that the statute made all those who assisted in the persecution of civilians ineligible for visas.” 449 U. S., at 5 12. Finally, the majority concludes that the DPA ba r is distinguishable from the INA bar because the former was enacted in the contextof the “ ‘ “crime against humanity that [was] involved in the concentration camp,” ’ ” whic h was so horrific that it i s in acategory all its own. Ante , at

——————

5 Moreo v er, in the Refugee Act of 1980, which added the persecutor barto the INA, Congr e ss separ a telyc o dified its desir e to “pr o mote opportunities for resettlement or voluntary r e patr iation .” §101(a), 94 Sta t . 10 2, n o t efollowin g8 U. S. C. §1521

. In1996, w h enCon gr e ss r eenac ted the statutor ytex t , it r e tained the persecutio n bar’s broad la ngua ge whil e a g a i n res t ricting othe r s e ctions to volunta r y condu c t. See IIRIRA, § 304, 11 0 St at . 3009– 58 7 (r elatin gto “v olu n t ar ydepartu r e ”), §402, id., at 30 09– 6 56 (r ela t in gt o“v olu n t ar y” par t ic ipat ioni n pilot programs for confirming employ ment eligibility) , §604, id., at 300 9– 690 (pr o v i din gfor termin ationof as y l u mwh enalien“v olu n t ar ily” t a kes cert a i n a c t i ons )

.17 Cite as: 55 5 U

. S. ____ (2009)

T HOMAS , J. , dissen t in g 8 (quoting Fedorenko, supra , at 51 1, n. 32). In that unique context, th e majority reasons, it made sense to exclude “even those involved in nonculp able, involuntary assistance in Na zi persecution.” Ibid. But the ma jority canno t intend to suggest tha tall acts of persecution during t h e Second World War were inhe rently more depraved o r reprehensible than all acts of pe rsecution that have o c curred in th e decades since the INA’s enactment. Certainly, no such con c lusion is c o mpelled b ythe statutory tex t

. Congress has steadfastly condemned all acts of persecution. See 22 U. S. C. §§6401(a)(5)–(7) (noting th at “Congress has recognized and denounced acts of religious persecution,” whichca n be “severe and violent” and “pa r ticularly wi despread, systematic, and heinou s under totalitarian governments and in c o untries with militan t politicized religious majorities”); §6401(b)(5) (announcing that it is th e “policy of the United States” to “ s tan[d] wi t h the persecu t ed”); §501, 78 Stat. 1 015 (“The Congress co ndemns the persecution of any persons bec ause of th eir religion”); Refugee Act of 1980, §1 01(a), 94 Stat. 102 (“Th e Congress declares that it is the historic policy of th e United States to respond to the urgent needs of persons subject to persecution in their h o melands”). There is no reason to deny the INA persecutor bar its full meanin g 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 natura lly extends to all acts of persecution and, there f ore, requires the denial of asylum and withholding of removal for “even those involved i n 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 in18NEGUSIE v. HOLDER

T HOMAS , J. , dissen t in g persecution was voluntary, and be cause it is conceded that petitioner assisted and participate d in persec ution while serving as an armedprison guard in Eritrea, I would affirm the decision of t h e Court of Appeals. Accordingly, I respectfullydissent.