Negusie v. Mukasey, Attorney General - Oral Argument

ORAL ARGUMENT OF ANDREW J. PINCUS ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument first this morning in Case 07-499, Negusie v. Mukasey.

Mr. Pincus.

Mr. Pincus: Thank you, Mr. Chief Justice, and may it please the Court:

A father forced at gunpoint to engage in incest with his daughter because of his religion, race, or political views, and told that he and his daughter will be killed if he refuses, is far outside the class of persons brought to mind by the ordinary meaning of the phrase at issue in this case, which is reprinted on page 1 of our brief, quoting from section (a)(42): "Any person who ordered, incited, assisted, or otherwise participated in the persecution of any person" on account of a prohibited factor.

The same is true if -- of someone who, as part of the religious persecution directed against him, is forced on threat of death to disrupt a prayer meeting and injure his co-religionists. The father and the co-religionists are victims of persecution. They would not be described in ordinary parlance as "persecutors."

And we think that that really under the Government's view, the persecutor bar turns solely on what they term "objective effect of an individual's acts." But that means that the act need not be accompanied by any of the indicia of moral offensiveness that the law typically requires, even if the individual acted under duress, under threat of death, even if the individual did not know that his conduct related to persecution, and even if the individual.

Justice Kennedy: Do we begin with the assumption that this is a Chevron deference case? And I think Aguirre, INS v. Aguirre, would tell us that it is.

It was a different statute. Do we begin with that assumption?

Mr. Pincus: Well, I think under Chevron that, one, the first question is is there a gap to be filled here? The language --

Justice Kennedy: Well, do I begin with Chevron?

Mr. Pincus: Well, yes. We think Chevron supplies the framework. The first question is, is there ambiguity. We would -- we argue that here and our principal submission is that there is no ambiguity here and that there is therefore no occasion for deference.

If the Court were to disagree with that --

Chief Justice Roberts: I take it your position is that there's no ambiguity in the way the term is used in the statute, as opposed to no ambiguity in some abstract sense?

Mr. Pincus: Yes, our submission, Mr. Chief Justice, is that the phrase here, using the principle that the Court applied in Watson and looking at the phrase and looking at the picture that it brings to mind, would never bring to mind the examples that I cited as conduct that would be captured by this provision.

Justice Scalia: Mr. Pincus, could I ask about your description of the Government's position as saying that it's purely objective and that there's no mental factor whatever. Is it clear that the Government not only would not take into account coercion, the fact that it was done under coercion, but also would not take into account the fact that the individual even knew?

Mr. Pincus: There are cases --

Justice Scalia: -- that he was persecuting somebody?

Mr. Pincus: Yes, Your Honor, there are cases, some of which that determination has been reversed by a court of appeals. But the BIA has taken the position that --

Justice Scalia: Has the Government taken that position here in in this case?

Mr. Pincus: The -- well, we pointed out that that is the position that the BIA has taken and the Government has not disavowed it. So I don't know whether they're --

Justice Scalia: I guess I should ask the Government?

Mr. Pincus: Yes, Your Honor. But there certainly have been a number of decisions along that line, including one, for example, where an individual was told, you know, "Stand here. "

Justice Scalia: I could think that that's wrong without thinking that you also have to take into account whether there was coercion.

Mr. Pincus: You could, Your Honor, although the underlying -- the Government's underlying theory for all three of its positions, both that coercion doesn't matter, that knowledge doesn't matter, and that subjective intent doesn't matter, is its view that these words require only objective acts. Once you've determined that the words require something more --

Justice Scalia: Well, but it's very -- - it's very common in -- in criminal statutes to require knowledge of the act. Indeed, if the person doesn't know what he's doing, you know, he may be insane, but he's not a criminal. Whereas, it is not automatically clear that the fact that the -- you killed somebody because otherwise they'd break your arm would -- would be a justification. I mean, it seems to me the two are quite separable.

Mr. Pincus: Well, two responses, Your Honor. Certainly in the criminal context, duress is a well-recognized defense and this Court has said that in Dixon and other cases. But I just want to be clear that the knowledge that we are talking about here that the Government has disavowed is not knowledge that you engaged in an act. They don't -- they don't take the position that sleepwalking is -- can be a persecutive act. But their view is even if you don't know that your act is contributing to persecution -- you're kept in the dark by the actual persecutors; they just ask you to do something that in fact is contributing to persecution -- -they say that doesn't matter, and that it all rests on what we think is their wrong-headed construction of the statute.

I just want to return to --

Justice Alito: Your position is that any threat of serious injury is sufficient?

Mr. Pincus: Excuse me?

Justice Alito: Your position is that any threat of serious injury is sufficient?

Mr. Pincus: No, Your Honor. I mean, obviously --

Justice Alito: But that's what your brief says: "Being forced upon threat of death or serious injury to participate in the persecutory acts of his oppressors."

Mr. Pincus: Yes, and our position is that that's a logical starting point. There is of course a body of law that's been developed in the criminal context about the parameters about the defense of duress and that would be a pretty logical starting point, we think. The Attorney General would have discretion, once the Court corrected the view that the statute doesn't -- that coercion is irrelevant, just to, within the limits of Chevron, define what the coercion test is.

Justice Alito: If someone said, if you don't -- there are 500 men, women and children in a shed; if you don't administer lethal gas to them, we are going to administer 20 lashes, that would be sufficient in your view?

Mr. Pincus: Well, under some -- under some conceptions of this defense, there is a balancing test between the threat that is directed against the individual and the threat -- and what the injury that he is asked to carry out. That could be part of the test.

Justice Alito: Well, that's not very helpful. How would the balancing be struck? How would you strike it there?

Mr. Pincus: Well, what the courts have said in the criminal context is that there are three criteria: An immediate threat of death or serious bodily injury; a well-grounded fear that it will be carried out; and no reasonable opportunity to escape.

That's the general standard. So in the criminal context

Justice Scalia: So you wouldn't balance.

So, you know, gas these 20,000 people or we will kill you?

Mr. Pincus: It might be appropriate --

Justice Scalia: You gas the 20,000 people, right, and that's okay?

Mr. Pincus: Well, some courts have said that murder is a different kettle of fish and that there is a question unanswered in the Federal system about whether or not there is a direct defense for murder.

The States are divided. The Model Penal Code has said yes, there should be. That is one of the issues that would be open for the Attorney General to the extent he wishes to exercise his discretion to decide.

What's clear, though, is, we think, the rule -- the current construction of the statute is not right. There is a body of law out there that is well developed in the criminal context that could be a very logical starting point.

Justice Ginsburg: Why shouldn't the starting point be what this Court decided in the Fedorenko case? The wording of this provision is very close to the wording of that statute, much closer than the UN covenant that you have referred to.

Mr. Pincus: Well, Your Honor, two responses to that. First of all, the language in Fedorenko, the text was very context-specific and it shows that. The language that applied there specifically referred to the enemy and specifically referred to persecution of civilians, making it quite clear that that was a statute that was targeted in the specific World War II context, which was all that it applied to.

Justice Souter: It was also the distinction about the use of the word "voluntary," in which the operative language which barred those people didn't have "voluntary" in it, and I forget what it was, the next textual section it was there, so it was reason to infer that voluntary activity was not a criteria for the bar.

Isn't that right?

Mr. Pincus: Exactly, Your Honor, and the Court said the deliberate omission -- it specifically looked at the fact that these sections were adopted at the same time, followed on each other immediately, and one had "voluntary," and then it said this was a deliberate omission and we conclude that that deliberate omission provides the basis for interpreting the language --

Justice Kennedy: Do you take the position that the Government is wrong in saying that it's bound by Fedorenko and that's the reason perhaps for us to send it back?

Mr. Pincus: Exactly, Your Honor. I was going to get to the second part of your Chevron question and respond just that. If the Court were to conclude, contrary to our submission, that the language here is ambiguous and there's a gap to fill, our position is -- and we think it's quite well borne out by the decisions -- that the BIA's decisions here rested on the mistaken assumption that Fedorenko bound it in this case.

Justice Kennedy: And do we begin with the decision in Rodriguez-Majano, the BIA decision --

Mr. Pincus: Yes.

Justice Kennedy: -- which cited Fedorenko?

Mr. Pincus: Rodriguez-Majano was the first one. The issue was not even raised in that case. It was dicta in the paragraph before citing Fedorenko> In fact, the BIA says: "The service agreed at oral argument that the actions don't constitute participation and persecution." So there really wasn't an issue there. But all that's there is a sentence and a reliance on Fedorenko, seems pretty clear that that decision just mistakenly believed Fedorenko controlled the case.

Justice Scalia: Well, to give the devil his due, it's not just the BIA that took that view, it's every court of appeals that -- that has looked at this provision has said that Fedorenko is a guide to what it means, right?

Mr. Pincus: Yes.

Justice Scalia: So you are faulting the BIA for -- you are saying it's beyond reasonable interpretation for the BIA to adopt the -- the resolution of the ambiguity, assuming there is an ambiguity, which comports with every court of appeals to address the matter has said?

Mr. Pincus: I think there are -- there are two different questions here, Justice Scalia. If the BIA purported to -- if the -- if the BIA said there is a gap to fill here, we are going to exercise our expertise and discretion and decide that, that would be one situation. We think it's quite clear here that the BIA believed erroneously that Fedorenko compelled the result, that it thought this was a Chevron step one case, and it was merely reciting what it believed to be the rule and saying that Fedorenko controls. So we think --

Justice Scalia: Why do you think that's clear? What's -- what's the text you rely on?

Mr. Pincus: The text that we are relying on is -- is the actual decision, which just makes a flat statement, again in dicta: "The participation or" -- I am reading from Rodriguez-Majano.

Justice Scalia: Do I have it in front of me?

Mr. Pincus: You don't. It's a decision of the BIA.

Justice Scalia: Well, gee. I mean, if this is central to your case, don't you think I ought to have the language in front of me somewhere?

Mr. Pincus: Well, actually the language is on page 27 of our yellow brief.

Justice Scalia: Wonderful.

Mr. Pincus: At the very top of the page.

So all that there is there is a recitation of the rule and a citation to Fedorenko. And our submission is --

Justice Scalia: It's a "see" citation, right?

Mr. Pincus: Yes.

Justice Scalia: Well, I mean, you know, it's just not a flat citation which would say that governs. It means this is a relevant case that you should look to. And you don't deny that it's relevant.

You try to distinguish it, but it's certainly something you should consider, no?

Mr. Pincus: Well, Your Honor, it is certainly --

Justice Scalia: And that's all you have to say that they -- they based it on Fedorenko?

Mr. Pincus: Yes. Well, first of all, as I say --

Justice Scalia: That's not very much.

Mr. Pincus: -- the statement in this decision is dicta. Here I'm not sure whether they consulted the Bluebook before they picked the "see" cite, but -- but it -- it seems to me that -- that all we have here is a legal rule and a legal rule that generally has been perceived to be the rule that -- that was announced by Fedorenko, not tied in any way to the different statutory language at issue in this case or anything else.

Let me -- let me also turn to the second decision that is relied on, which is the decision in this case. And there -- and I am looking at -- at page 6a of the petition. And the BIA says, citing to -- to its prior decision in Matter of Fedorenko, it -- it recites this rule. Now --

Justice Scalia: It's a "see" cite again, isn't it?

Mr. Pincus: It's another "see" cite.

Justice Scalia: All right, that's good.

Mr. Pincus: Which they indicate because they are actually directly -- well, anyway.

The Matter of Fedorenko, that's a case -- and I apologize. In our brief we said that was the case that relied on the DPA. That's actually a case that involved the Holtzman Amendment, again not the statute at issue in this case, and therefore just sort of reflexively taking a rule in a different case and applying it to this very different statute without any analysis. And not to get into too much of a train of BIA logic, but I think it is important.

The second case cited here, Matter of Laipenieks, which is the actually the -- the precedent that Matter of Fedorenko relies on, again specifically called out the language of Fedorenko and says, as in Fedorenko -- and I am quoting from page 464 of that decision -- as in Fedorenko, the plain language mandates the result.

So here in -- in all of the BIA analysis, there is no analysis in terms of exercising expertise and discretion.

Chief Justice Roberts: I'm sorry. Where -- the plain language dictates the result, where do I see that?

Mr. Pincus: I apologize. It's in a different BIA decision. It's In the Matter of Laipenieks decision at page 464.

Justice Scalia: You say "Citing Matter of Laipenieks"?

Mr. Pincus: Yes.

Justice Scalia: Citing it. It says "citing Matter of Laipenieks." Do you know if they cited it just flatly or was it a "see" cite?

Mr. Pincus: That I don't know, Your Honor.

Justice Scalia: Do you want to bet?

Mr. Pincus: I'm betting on "see."

Chief Justice Roberts: If -- if they say that the plain language of the statute dictates a particular result, I say -- I suspect that that's a concession we are in Chevron step one, rather than two.

Mr. Pincus: Exactly, Your Honor. And that's why in -- my response to Justice Kennedy's question is that if the Court were to disagree with us and conclude, contrary to our submission that the language is ambiguous, then we don't have an exercise of agency discretion under step one or step two, because all the agency decisions rest on the belief that the statutory language forecloses that -- the -- the.

Exercise of that discretion.

So in that event we submit the appropriate result would be to remand the case, but --

Justice Scalia: Mr. Pincus, can you tell me: What is the consequence of this? I mean if, indeed, your client is -- is denied asylum because -- because he participated in -- in, under coercion or not, discriminatory action against others, what is the consequence? He is not sent back to the -- to the country that -- that is persecuting him, is he? Well, his -- his deportation has been deferred under the Convention Against Torture. So he has some -- some protection, not the protection, not the full protections that he would be entitled to if he were found to be a refugee.

Justice Scalia: What -- what happens to him? Does he -- does he stay here or --

Mr. Pincus: He gets to stay here --

Justice Scalia: Until some other country other than the one that will persecute him will receive him, is that -- is that it?

Mr. Pincus: Yes. Or if -- if he were to -- he gets to stay here as long as sending him back would not involve torture. So the protection is narrower than the protection that generally would be available in two senses:

First of all, it only applies to torture.

If you were sent back and you were going to be imprisoned for life for your -- for the acts that are protected --

Justice Scalia: Oh, really?

Mr. Pincus: -- the CAT would not protect you. And CAT also does not protect you against non-state actions. So especially in the world today, where a lot of the bad things that happen in other countries are by rebels and non-state actors, the Convention Against Torture would not provide protection in that situation. So it's broader protection for a broader -- for a somewhat broader group of people.

Justice Scalia: Okay.

Justice Alito: Let me ask you -- let me ask you about another practical consequence of your provision. I -- I have seen a lot of these asylum cases, and usually the evidence consists almost entirely of the uncorroborated statement made by the person who is claiming asylum.

So in your view the immigration judges are going to have to decide the degree of the threat that the asylum claimant underwent and the consequences of failing to comply with whatever he was directed to do.

And they are going to have to do that based solely on the credibility determination made about an uncorroborated witness who's typically testifying through an interpreter and who has all of the mannerisms and aspects of speech of someone who comes from an entirely different culture. That's the consequences of the position that you are advocating?

Mr. Pincus: Yes, Your Honor, just -- just as in the initial question about whether someone has been subject to persecution in the first place, that's -- that is the process that we have. And immigration judges are quite skilled in getting to the bottom of what's going on.

They also have, in addition -- and as relied on in this case --

Justice Alito: You really think that's true? They are quite skilled at getting to the bottom of making --

Mr. Pincus: Well, I think -- I think it is their job. I think they also have the country reports that the State Department prepares, and they were relied on in this case. If -- if, for example, someone were to come in and say, I am a victim of coercion, and the country report does not provide any indication that that is happening in the country, that's obviously a reason to look quite skeptically --

Judge Scalia: Well, if I claim I would be subject to persecution in Denmark if I were sent there, that might be an easy question. But they typically come from a country where there is persecution, and they could easily have been subjected to it, or they could also just as easily have read about it or heard about it in -- along their way here.

You think that's an easy determination?

Mr. Pincus: If -- but -- well, but it's true of the initial claim of persecution. But if -- if the refugee, an asylum applicant, comes and says, I have been subject to persecution, and there is no issue of coercion in the case, that is -- the concern that you have identified arises there. If a case-specific, the case-specific decision has to be made, this is an additional question that will have to be answered.

Justice Scalia: Your unprovable question upon unprovable question. I mean, to say that one question is really, really hard to figure out is no justification for laying on another one.

Mr. Pincus: And -- and we also think it's significant in this respect, that the Secretary of Homeland Security has in connection with a different disability, the material support disability, said that, promulgated an exclusion for -- in some circumstances for people who are coerced to provide material support.

Justice Breyer: I am quite curious why -- I am curious, why did you answer Justice Alito's question "yes"? I -- I would have thought that if you win this case, the Attorney General would still have tremendous leeway in deciding where, when, under what circumstances, the duress defense applied. Why isn't that so?

Mr. Pincus: That's absolutely right, Justice Breyer.

Justice Breyer: If that's right, then why do you not -- why was your answer yes?

Mr. Pincus: My answer was in the absence of action by the Attorney General. But I think you are absolutely right that the important thing to point out here is, as with the standard itself, the Attorney General could in the asylum context decide that in certain kinds of situations that this coercion is not relevant.

Justice Stevens: Mr. Pincus, refresh my recollection about something about the Fedorenko case, which I should have reread, but I honestly didn't in detail. Am I not correct that the point that Justice Alito makes was really part of the background of the case there was that nobody really believed his testimony? It was assumed, for purposes of decision, that he was telling the truth, but it was pretty clear he was not. Whereas here everybody does assume, for purposes of decision, that this man is telling the truth?

Mr. Pincus: Yes, I think that's -- that's correct, Justice Stevens. And part of what was going on there was the sheer -- two things: The sheer administrative burden of millions of refugees and the need to process them in some kind of expeditious fashion; and the fact that it was known that there was sort of an organized effort by people who had been participating, especially in the concentration camps, to come up with this defense.

Justice Scalia: Mr. Pincus, I didn't -- I didn't get the bottom line of your exchange with Justice Breyer. Is it your position that there -- there has to be some -- some coercion defense, but it's up to the Attorney General to say what it is? I mean, he could say only if he were threatened with death?

Mr. Pincus: Yes.

Justice Scalia: And only if you were threatened with torture, not if it was threatened that your family would be exterminated? Where do you get that discretion in the -- in the statute?

Mr. Pincus: Well, the Attorney General has rulemaking authority in the asylum area, certainly. And we think even in -- even with respect --

Justice Scalia: Any old coercion defense he can do -- make. So long as there is some coercion defense, that's all you want. Some coercion defense?

Mr. Pincus: Well, we think the question now before the Court is, is there no coercion defense? That's the -- that's the Government's position -- flatly, totally irrelevant.

Justice Kennedy: But why does the Attorney General have expertise in -- in that area? I can understand why he has expertise when he knows that, from experience, that certain defenses are harder to prove than others, that certain evidence is harder to obtain than other evidence. But does the Attorney General really have expertise in determining degrees of duress, degrees of culpability? Is that within the Chevron framework?

Mr. Pincus: Well, it -- it -- it seems to me it could well -- I mean, obviously, that would be a question that would come up, but -- but given that --

Justice Kennedy: I don't know why you -- I don't know why you concede that.

Mr. Pincus: Well, I think once there is a coercion defense, it would be fleshed out in the administrative process.

Justice Scalia: You said -- you never get past step one of Chevron. You say that this statute is clear. You say it's not ambiguous.

Mr. Pincus: Absolutely. Well, we --

Justice Scalia: I think it's pretty ambiguous if, you know, there is some old coercion defense, but we don't really know what it is.

Mr. Pincus: Well --

Justice Scalia: It seems to me if you are going to say step one is clear, there has to be some coercion defense that -- you know, of -- of a substantial nature that the Attorney General cannot fritter away.

Mr. Pincus: We agree with that, Your Honor, and I apologize if I suggested to the contrary.

Justice Ginsburg: What would be -- what would be the minimum. You say the statute is clear. It requires some culpability, how would you verbalize what is the lowest standard that the Attorney General could impose to read statute to infuse in it some element of culpability?

Mr. Pincus: Because the statutory context here was to implement our treaty obligations, and the treaty obligations refers -- refer to criminal conduct -- we think the logical starting point that -- that you are asking about, Justice Ginsburg, would be the criminal law standards, which, as I say, are well developed in the Federal system.

Justice Souter: Serious bodily harm?

Mr. Pincus: Yes, it's a -- it's a three-part test: Threat of serious bodily harm; no reasonable well-grounded fear that it will be carried out; and no reasonable way to avoid it.

Unless the Court has any further questions, I'll reserve the time.

ORAL ARGUMENT OF GREGORY G. KATSAS ON BEHALF OF THE RESPONDENT

Chief Justice Roberts: Thank you, Mr.

Pincus.

Mr. Katsas.

Mr. Katsas: Mr. Chief Justice, and may it please the Court:

In categorical terms, the Immigration and Nationality Act provides that persons who assist or otherwise participate in persecution may not obtain certain immigration benefits.

Chief Justice Roberts: Where you stopped -- you stopped in the part that interests me, "participated in persecution on account of race, religion, nationality or membership in a particular group. When these people are forced to engage in persecution, it's not because of the victim's race or religion; it's because someone's got a gun at their head.

So, you ask them, "Well, why did you do that? Why did you, you know, whip that person? They will say: Because they were going to kill me. They are not going to say, I -- you know, because I was biased against his race or religion.

Mr. Katsas: No, but the -- the "on account of" phrase, Mr. Chief Justice, modifies the "persecution." The persecution in this case was directed --

Chief Justice Roberts: Well, how do you know that? Why can't it just as easily modify "incited," "participated in"? You have persecution.

Did they participate in the persecution on account of race; or did they participate, again, in the persecution on account of what the -- what the force exerted against them was?

Mr. Katsas: I think grammatically, the immediately preceding noun is "persecution." If the "on account of" phrase modified -- modified the assistance, Mr. Chief Justice, it seems to me that would prove far too much, in that a prison guard who served voluntarily, voluntarily in order to get a paycheck, wouldn't be within the bar because he would -- he wouldn't be assisting on account of --

Chief Justice Roberts: Well, that just bring you back to what "assistance" means. If you -- normal statutory canon, you have got "ordered," "incited," "assisted."

Mr. Katsas: Right.

Chief Justice Roberts: "Assistance" can be read in the same sense as ordered or incited with terms of an active -- I don't know what it is -- predisposition or desire. Or it can be read in the manner you suggested, somebody who's just doing it for -- for the paycheck.

So, if we read it in eiusdem generis terms, then I think your response falls short.

Mr. Katsas: I don't -- I don't think so, Mr. Chief Justice, in that the question here -- the question here is the availability of a duress defense.

One can -- one can order persecution under duress just as one could assist in persecution under duress.

Imagine, for instance, the camp commandant at Treblinka ordering the slaughter of thousands of innocent people. He could say: Well, I'm doing that under duress because if I don't, if I don't order persecution, someone up my chain of command will kill me, which is precisely what's wrong with Petitioner's theory here, its -- its unbounded nature.

Chief Justice Roberts: Well, but that argument is at one extreme, where if this does apply as the way Petitioner suggests we assume the Attorney General can exercise his discretion and not afford relief. But on the other hand, it could go to some of the horrific examples that Mr. Pincus suggested; and in those circumstances the Attorney General could exercise his discretion to afford relief.

Mr. Katsas: The Attorney General does not have discretion with respect to withholding. And remember, the persecutor bar in the asylum statute is identical to the persecutor bar in the withholding statute.

But in any event, this Court said in cases like Phinpathya the fact that the text goes to an eligibility requirement is not a ground for the Court reading in limitations that aren't there on the theory that the Attorney General can address something case by case. That's because immigration is subject to the plenary control of Congress, and when Congress writes a rule and this Court converts it into a standard, it's shifting control over the immigration laws from Congress to the Executive and ultimately to the courts.

It seems to us that reasoning governs here.

With respect to your question about hard hypotheticals, I don't dispute that there are hard, sympathetic -- sympathetic persecutors on Mr. Pincus' side of the case, but keep in mind what is at stake here.

Persecution is not typically a grassroots phenomenon. It's a -- it's a phenomenon typically ordered by governments or rebel groups aspiring to be governments. It's typically carried out through coercion. So if Petitioners are correct, not only the prison guard in this case who held a gun to keep people out in the sun until they died, not only would he have a colorable defense, but so too would every single guard at Treblinka.

Chief Justice Roberts: And so too would, I gather, the person who is threatened with harm if he doesn't build the prison walls, right? He knows they are going to be used to persecute people and hold them in. I mean, if -- you know, if you push the extreme interpretations they go either way.

Mr. Katsas: But the point --

Chief Justice Roberts: Does he -- does he persecute people on account of race?

Mr. Katsas: Well --

Chief Justice Roberts: We have a prison here; we are going to hold members of a particular racial group here, and we are going to force you to build the walls.

Mr. Katsas: Mr. Chief Justice, you are absolutely correct that there will, of course, be hard cases about how broadly to draw the circle. But in Fedorenko, this Court instructed that the way to deal with that problem is not by reading in a -- a voluntariness exception into a statute that simply doesn't contain it, but rather by --

Justice Kennedy: Well, but your position is that it is unbounded. If the legislature passes a statute requiring specific intent, scienter, concepts of personal responsibility, we don't say this is unbounded.

Mr. Katsas: Of course, Justice Kennedy, Congress could pass a statute with whatever --

Justice Kennedy: I'm saying in the general criminal law. We don't say, oh, this is unbounded.

This is what courts are for. This is what adjudication is for, is to establish and define what duress means, what scienter means, what degree of intent is culpable, what isn't. It's not unbounded.

Mr. Katsas: That's true in the context of criminal law. But think about why it's true, Justice Kennedy. It's true because Congress when it passes criminal statutes legislates against a background of hundreds of years of common law precedent in the criminal area; and this Court has said presumptively Congress legislates against that common law background, and that is the theory for on some occasions reading mens rea requirements and common law defenses like duress into criminal statutes.

Justice Breyer: Why not any statute? I'm mean, starting where Justice Kennedy left off, you said a hundred years. It's thousands of years. You could go back into the history of the human race --

Mr. Katsas: Exactly.

Justice Breyer: -- and you will discover, of course, that your word "involuntary" is never something where the action is involuntary that we praise or blame people. Rather, every action where we praise or blame people must be a voluntary action. The classic example is: "The wind blew my arm." Now, you are saying that if this person's arm was blown by the wind, that this statute prevents him having asylum in the United States or having -- you know, withholding. How could one assume that involuntary actions are covered by this statute -- are not covered?

Mr. Katsas: Justice Breyer, the case --

Justice Breyer: Are covered.

Mr. Katsas: Two points. With respect -- with respect to involuntary actions, this case -- this case doesn't present that question.

Justice Breyer: All right. Then once you say that, then let's talk about intentional actions.

Mr. Katsas: Okay.

Justice Breyer: And are you going to have intentional actions?

Mr. Katsas: Yes.

Justice Breyer: Because praise or blame typically involves a voluntary action, an intentional action, and an action where there is a degree of freedom, which is to say that the choice is not too skewed. And we see that in the criminal law by a reading into statutes that say nothing of the word "intentional," and by the use of the duress defense.

Now what reason do we have for thinking that Congress didn't mean these words here in exactly that way, which traces back at least to Aristotle?

Mr. Katsas: Because the thousand-year tradition that you correctly identify is a criminal law tradition.

Justice Breyer: Oh, but Aristotle doesn't say criminal law. He says praise or blame.

Mr. Katsas: Justice Breyer, this is a statute -- this is a statute that allocates immigration benefits. Immigration law is a creature of statute.

There is no background in common law --

Justice Breyer: That's absolutely right.

But do you think Congress intended that this absolute bar should apply where the person is in no sense blameworthy?

Mr. Katsas: The question -- with respect to intentional conduct, the conduct at issue here, Justice Breyer, is knowing and intentional. So there is no question about --

Justice Souter: No, the reasoning here, Mr.

Katsas, it seems to me implicates exactly what Justice Breyer brings up. We had a colloquy earlier on -- on the extent of the reliance by the BIA for its general policy on Fedorenko, and what the does a see cite mean and so on. But in -- in this particular case, going to page 6a or 7a from which Mr. Pincus was -- was earlier quoting, if you look on page 7a, the reason that Fedorenko is thought to be appropriate here is, he -- that is to say, the Petitioner here -- has not demonstrated his conduct is distinguishable from that of the alien in that case. The conduct of the alien in that case was identified as relevant by the voluntary/involuntary distinction. It was so identified because of the text of the statute, voluntary was used in one place; it wasn't used in the place where the bar was set up.

So that it seems to me that by the express reasoning in this case, this case is governed by a rule that in effect says the distinction between voluntary and involuntary action is not a relevant distinction.

So I don't thin k you can get by in this case without confronting just what Justice Breyer says.

And I don't see how you can answer his point in this case without admitting that Fedorenko in fact was -- was improvidently relied upon, because it's not good authority here.

Mr. Katsas: I -- I don't know why it -- with respect to the BIA's reasoning, this decision is a straightforward application of 20 years of BIA precedent concluding -- consistent with Fedorenko that voluntariness is not relevant matter.

Justice Souter: This is not really consistency with Fedorenko. This -- in this case the BIA is saying that he cannot say that his conduct in effect is different from the conduct in Fedorenko. And what was relevant about the Fedorenko conduct was it did not have to be voluntary conduct.

So it is bringing -- it seems to me, the reasoning in this case is relying upon a rule that says that the voluntary/involuntary distinction is not significant.

Mr. Katsas: Right. That was the construction -- with the construction --

Justice Souter: Which answers Justice Breyer's question.

Mr. Katsas: But the -- I may be missing some of the subtlety of your point. But let me try --

Justice Souter: I doubt it, but go ahead.

(Laughter.)

Mr. Katsas: Let me try it this way. The -- the statutory formulation that we are discussing is the concept of assistance in persecution. Fedorenko in the context of the displaced person's act construes that provision to make involuntariness irrelevant as a matter of law.

Justice Souter: Right.

Mr. Katsas: Many courts of appeals and the BIA repeatedly over the last 20 years have held that the reasoning that Fedorenko governs not only the displaced person's act, where it is of course directly controlling, but subsequent statutes, of which there are no fewer than seven, using essentially the identical formulation of assistance in persecution: Congress carries forward that formulation in a canonical way statute after statute.

If you look to legislative history, you will see that Congress repeatedly expresses an affirmative intent that all of these persecutor bar provisions be construed in pari materia and against that backdrop we have administrative precedent.

Justice Souter: But one thing that Congress has not done and it didn't do it in this Act, is to make the express voluntary/involuntary distinction textually that the DPA made in Fedorenko. And it seems to me that the reasoning set out in this case says this is exactly like the Fedorenko situation; that implies that the same rule in Fedorenko should apply. If the same rule applies, presumably it should be on the basis of a statute which is identical on the -- on the textual voluntariness point to the statute in Fedorenko. This one -- this one is not.

Mr. Katsas: Identical or not textually distinguishable, to the extent that --

Justice Souter: Well, you don't have the voluntary/involuntary distinction here in -- or -- in textual treatment that you had in -- in the DPA statute in Fedorenko, do you?

Mr. Katsas: You -- well, you have the same operative language of assisting persecution.

Justice Souter: You don't -- you don't follow that with the section that uses the word "voluntary," whereas the bar does not use the word "voluntary," right?

Mr. Katsas: Except you do. Throughout the -- throughout the INA are provisions that are expressly keyed to voluntariness. So you have the same -- the same contrast can be made with respect to the INA bars as Fedorenko made with respect to the DPA bar.

Justice Souter: Can you --

Mr. Katsas: And they --

Justice Souter: Can you give me a couple of examples of the voluntariness that creates in effect the same distinction here as under the DPA?

Mr. Katsas: Sure. Let me give you one:

The asylum -- the asylum statute -- the substantive asylum statute itself in 8 U.S.C. 1158 provides --

Justice Souter: Was that passed as part of the same legislation that created the bar section we are dealing with?

Mr. Katsas: Yes and no. Let me explain.

Section 1158, the substantive asylum law, did not have a persecutor bar as originally enacted by the Refugee Act of 1980. The persecutor bar in the substantive asylum statute was added in 1996 by the IIRIRA statute, which in the same statute, in the same section, has a provision that asylum can be terminated if the alien voluntarily decides to return to his home.

So you have a contrast in the same section of the same statute. Conduct-based --

Justice Souter: But it's -- I don't want to split hairs here, but I mean the voluntary return behavior is a behavior of the alien in this country with respect to, in effect, an election under existing federal law; whereas, the voluntary/involuntary distinction in the DPA was a distinction that referred to the alien's conduct overseas at the relevant time.

Mr. Katsas: That's a fair point, Justice Souter, but to the extent part of the reasoning in Fedorenko rests on the -- and the inference from the contrast, those same contrasts are present here where -- the point of the example --

Justice Souter: You have convinced me there are contrasts, but I am not sure that they are contrasts that raise the implication in a clear way as it was raised in the DPA. And I think that's my only disagreement with you at this point.

Mr. Katsas: Well, you have --

Justice Scalia: Mr. Katsas, can I bring you back to Aristotle? (Laughter.)

Mr. Katsas: Absolutely.

Justice Scalia: Thank you. This is not a criminal statute.

Mr. Katsas: Exactly.

Justice Scalia: The government is not imposing punishment upon this person --

Mr. Katsas: Exactly.

Justice Scalia: -- for some malfeasance.

Rather, it's -- it's giving a grant of a great benefit

Mr. Katsas: Exactly.

Justice Scalia: -- to a class of people.

And your position is that it has narrowed that class, perhaps now more than was necessary, but that the government thought that, rather than letting in and giving asylum to the commandant of Trebenko, it would be better to have a provision that simply excludes those who, under coercion or not, persecuted others. Isn't that --

Mr. Katsas: That's --

Justice Scalia: Did Aristotle say anything about that? Limiting --

Mr. Katsas: I'm not sure.

Justice Scalia: Limiting the nation's generosity on the basis of a provision that may or may not have anything to do with blame?

Mr. Katsas: I don't know what Aristotle had to say about it, but --

Justice Souter: But you do know that Aristotle was not construing this Federal statute, don't you? (Laughter.)

Chief Justice Roberts: Well, speaking of -- to get back to the language, what's wrong with saying, you have a clause that says "otherwise participated," right?

Mr. Katsas: Right.

Chief Justice Roberts: So that must mean, I gather, or could mean that "assisted" does not have as broad a meeting as you suggest, because otherwise the "otherwise participated" language would be unnecessary and redundant.

Mr. Katsas: I don't think so, Mr. Chief Justice, because the statutory sequence is the word "assist" goes all the way back to the Displaced Persons Act in the 1977 -- when Congress changes "assist" to "assists or otherwise participates in" --

Chief Justice Roberts: Right.

Mr. Katsas: -- the only consequence of that, if any, could be a broadening, not a narrowing.

Chief Justice Roberts: Well, I'm not sure that's right, because if "otherwise participated" covers -- "assisted" does not include "otherwise participated," and I understood your broad reading of "assisted" to cover the prison walls, and if it does, then I would say "assisted" needs to be interpreted with "ordered" and "incited," and if it is, then "otherwise participated" should be interpreted along the same lines.

Mr. Katsas: Mr. Chief Justice, the word "assist" was construed in Fedorenko not to -- not to contain an implicit voluntariness exception. Congress adds to that the word "participate," which this Court in Yeskey construed not to have an implicit involuntariness

Chief Justice Roberts: So you think there was just a -- it was a belt-and-suspenders redundancy?

Mr. Katsas: Either belt-and-suspenders or broadening the circle in ways that are difficult to describe in the abstract. But "participate" -- this Court has said in Reves, "participate" is a term of breadth. So I don't -- I don't see the argument that by adding an additional term of breadth to the scheme Congress somehow narrowed what would otherwise apply.

Chief Justice Roberts: What I may have missed, what was your answer to the prison walls? The guy who builds the prison walls?

Mr. Katsas: Yes.

Chief Justice Roberts: Is he or is he not participating in the persecution?

Mr. Katsas: My answer is that the analysis of that question does not turn on whether or not he is compelled to build the prison walls; it turns on footnote 34 of Fedorenko, which says that courts will have to draw difficult lines in distinguishing between the kind of aid that constitutes assistance within the meaning of the statute and the kind of aid that does not.

Justice Scalia: That's very helpful.

(Laughter.)

Mr. Katsas: But --

Justice Scalia: You -- can I get from you an answer to the question that I put to Mr. Pincus? Do you -- does the Government deny even the necessity of knowledge that what you are doing is assisting in the persecution of somebody? You don't even have to know that you are assisting in the persecution?

Mr. Katsas: In this case, Justice Scalia, our position is that knowledge is a sufficient mens rea and is clearly satisfied here where Petitioner, by his own testimony, knew about the mistreatment.

Justice Stevens: What is your answer to the question?

Mr. Katsas: We have taken the position, Justice Stevens, in other cases, that knowledge is not required.

Justice Stevens: All right.

Mr. Katsas: It's been rejected by a few courts of appeals.

Justice Scalia: Good for them. I mean, that is really an extreme position.

Mr. Katsas: It is a broader position, but happily for me, it is not the position before the Court today, particularly -- (Laughter.)

Mr. Katsas: -- particularly in light of Fedorenko, Justice Scalia, which puts a gloss on voluntariness, but does not address --

Justice Stevens: Voluntariness is the purpose the statute. What is the difference between intent and knowledge, in terms of the purpose of the statute? Why is intent different -- lack of intent any different from lack of knowledge? If you read this statute literally?

Mr. Katsas: The question -- I'm not sure the distinction.

Justice Stevens: You say that, do you not, that with a case involving lack of knowledge.

Mr. Katsas: Or intent.

Justice Stevens: Pardon?

Mr. Katsas: Or intent, Justice Stevens.

The conduct here intentional. The question is whether there is duress exception to it.

Justice Stevens: There was an intent to persecute or an intent to perform certain acts that constitute persecution?

Mr. Katsas: Intent to perform the acts that constitute --

Justice Breyer: People use that word "intent" in the course of the human race to encompass the notion of duress. I mean, that's -- that's sometimes done, sometimes not. They are part and parcel of the same thing, which is whether you can blame the person for what he did.

Mr. Katsas: They were not the same thing, even in the criminal --

Justice Breyer: In criminal law they were not, I agree --

Mr. Katsas: Right.

Justice Breyer: -- because that's -- because we've seen the need for specificity. But the question, I think, Justice Stevens had, and certainly I have, is why do you read some aspects of what it takes to hold a person responsible into the statute, but you don't read other aspects of what it takes to hold a person responsible morally into the statute?

Mr. Katsas: We don't read -- our position is it's not fair to -- it's not fair to incorporate the full common law background criminal concepts, including that of duress. The question by Justice Breyer whether assistance in persecution contains an implicit duress limitation seems to me very different from the question whether it contains an implied knowledge limitation.

And the latter question is not present here with respect to a prison guard who, by his own admission, knew exactly what was going on and deliberately implemented torture by keeping people in the sun, exposed in the sun to the point of death.

Chief Justice Roberts: Your concession -- statement earlier on, that there are going to be situations for judicial line-drawing --

Mr. Katsas: Right.

Chief Justice Roberts: And it suggests to me that BIA's discretion isn't applicable here under Chevron step two. Because what you are saying is this is not a situation where the statute never applies.

In a situation where you can logically determine and your answer on the knowledge question is pertinent, you can logically draw a line between what a person's doing and persecution; and yet you said the c courts are going to have to draw lines. So BIA -- the board might get discretion with respect to where that line is drawn and when, but they do not get discretion on the question of does it ever apply. And what your position is, that this never applies, whenever there is a but-for logical intention between the action and persecution.

Mr. Katsas: Mr. Chief Justice, they certainly get discretion in conducting the analysis of what constitutes assistance. But Fedorenko said that that -- that inquiry is independent of any question of duress on -- it said that the inquiry should happen case-by-case, that's fine; but it gave -- the footnote in Fedorenko gave us two clear data points to help frame the analysis.

One is the conduct of a woman who does nothing more than cut the hair of people bound for execution. Court said, as a matter of law, that cannot constitute assistance. The other data point is the case of an armed prison guard who, perimeter guard who keeps people in a camp; and the Court said, of course, that constitutes assistance.

Chief Justice Roberts: But you would say the woman who cuts the hair does participate in the persecution if there is a guideline that says look, we are not going to execute anybody unless -- before their hair is cut, right?

Mr. Katsas: I would not say that. I think Fedorenko --

Chief Justice Roberts: You would view that as a case that's not covered by the statute, even if the person is not going to be executed unless the woman does her job?

Mr. Katsas: I think Fedorenko -- Fedorenko says that the -- the level and degree and character of assistance of the woman simply cutting the hair does not constitute assistance. At the other continuum of conduct, Fedorenko says that the conduct of an armed prison guard does constitute assistance, even if, as in Fedorenko, the guard served under duress.

And Justice Stevens, if I could come back to the facts of Fedorenko, the district court in that case found that if Fedorenko did not serve at the prison guard -- at the prison camp, he would have been executed. That finding was not reversed either by the Fifth Circuit or by this Court, which held that duress was not relevant to the inquiry of assistance.

Justice Ginsburg: Mr. Katsas --

Mr. Katsas: Petitioner --

Justice Ginsburg: What -- what about the position that the displaced person's act was special to the Holocaust? I mean, we are dealing with people who said we were just following orders, and we did not want to grant those people asylum.

Now in this post-World War II effort, we are engaged in an enterprise where other countries in the world -- and should we look to see how they are interpreting this notion of duress, coercion? Are they considering it irrelevant; would just look to see if the person in fact was provided some material assistance to persecution?

Mr. Katsas: Justice Ginsburg, it's true that the Displaced Persons Act was limited to the Nazi regime, and later statutes, the Refugee Act generalizes in the sense of eliminating the time and place restrictions on the definition of refugee.

On the specific question of the persecutor bar, Congress carries forward the same language with an affirmative indication of intent to preserve the concept.

With respect to your point about the Nazis being singularly horrific in human history, think of how that feature plays out under Petitioner's theory. Under Petitioner's theory, the uniquely horrific nature of the Nazi regime gives rise to a dramatically expanded class of people who can credibly raise a duress defense on anyone under -- anyone under Adolf Hitler in the organization chart of the Nazi government could credibly say, if I didn't kill Jews, I would be killed myself.

The Executive permissibly rejected that construction of things in -- in construing the persecutor bar at issue here.

REBUTTAL ARGUMENT OF ANDREW J. PINCUS ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Thank you, Mr.

Katsas.

Mr. Pincus, you have four minutes.

Mr. Pincus: Thank you, Mr. Chief Justice.

Justice Scalia: Mr. Pincus, who has the burden of proof? Assume there is an exception for coercion.

Mr. Pincus: The applicant would have the burden of proof.

Justice Scalia: The applicant would. And -- and what -- how do you decide? There's not going to be any evidence on the other side, I assume. The applicant's going to say I was coerced. And -- and the only basis for rejecting is -- a sufficient basis is just, I -- "I don't believe you"?

Mr. Pincus: Yes. Credibility determinations are made all the time. And there is some -- I mean here, the applicant --

Justice Ginsburg: What do you mean they were made all the time?

JUSTICE: But how are they made? How are they made? I looked into the person's eyes and they looked shifty? No, they have to -- they search around for some little contradiction in the testimony. If the - if the IJ has a suspicion that this person's who testifying through an interpreter -- what language did the Petitioner here speak?

Mr. Pincus: I'm not -- not English.

Justice Alito: You don't know.

Mr. Pincus: I don't know, but not English.

There was an interpreter at the hearing.

Justice Alito: How many interpreters are there of that language in the United States and what are the quality of the interpreters?

Justice Scalia: And do they have shifty eyes? (Laughter.)

Mr. Pincus: But these are -- I mean --

Chief Justice Roberts: Do they typically have views on the underlying persecution issue that is at issue?

Mr. Pincus: Do the interpreters?

Chief Justice Roberts: Yes. I mean, it is not at all unreasonable, if you have a clash between two ethnic groups in a particular country, that the interpreters are going to have views one way or the other. They are going to come from one of the groups of one or the other.

Mr. Pincus: They may, Your Honor. But that -- that's a problem -- we already have a system where we were deciding whether someone is persecuted and all these issues arise. We are already looking very specifically at all the facts. The same facts -- the same factual development would be relevant to the coercion issue. As I said, the applicant will bear the burden of proof.

And here, the -- as in other cases, the country reports are often relied on and are revealing as to whether what the situation is, what the specific context is, makes sense.

If I could turn to the criminal law question that Justice Scalia asked. I think the criminal law background is very relevant here as well, because the treaty that this statute was enacted to implement our obligations with respect to, right -- referred specifically to crimes. The exclusion that was -- that is authorized by the treaty says, and I am quoting from an excerpt on page 11 of our reply brief: "has committed a crime against people" -- "a war crime or a crime against humanity." That therefore makes very relevant this body of law that has been developed in the criminal --

Justice Alito: Why is that an apt analogy? If we looked at all the duress cases that have been decided since the beginning, are we going to find cases where someone said -- someone claims that I was told I had to kill 25 people, 100 people; I had to put people out in the sun until they died, because if I didn't do that, I was going to be shot? Aren't the situations entirely different?

Mr. Pincus: I think you are combining two questions, Your Honor. One -- one is should this language be interpreted to have a coercive -- to require uncoerced conduct in order to label someone a persecutor. We think this is very relevant in deciding that question, because the underlying treaty that was implemented specifically referred to crimes, and crimes generally have that -- that -- crimes don't -- a criminal liability doesn't apply to someone who acts if they are coerced.

Whether the precise standards that have been developed in the federal criminal context control in all situations here, I think that is something that may not be clear. As I suggested, the Attorney General may have discretion to flesh out, and the board may, what is coercion in this context; and there is a debate as I said before, about whether intentional murder, especially the intentional murder of a group of people, is -- is an act for which coercion is -- a coercion defense is ever available.

But those are issues that -- that don't take away from the fact that here the Government's position is there is coercion is totally irrelevant.

If I could just -- one other issue, the voluntariness provisions in the statute that my colleague raised in response to Justice Souter's question, those provisions were enacted subsequently.

The 1980 Refugee Act adopted the language that's at issue here. May I finish my answer?

Chief Justice Roberts: It's not actually an answer but go ahead.

(Laughter.)

Mr. Pincus: Well, I'm sorry. May I finish my --

Chief Justice Roberts: You finish your sentence.

Mr. Pincus: -- my thought. The language at issue here, those came later in the re-enactment of that language in another context.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

(Whereupon, at 11:05 a.m., the case in the above-entitled matter was submitted.)