[align=left]
III

Having concluded that the BIA has not yet exercised its Chevron discretion to interpret the statute in question, “ ‘ “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” ’ ” Gonzales v. Thomas, 547 U. S. 183, 186 (2006) (per curiam) (quoting Ventura, 537 U. S., at 16, in turn quoting Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985) ). This remand rule exists, in part, because “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005) .

Justice Stevens would have the Court provide a definite answer to the question presented and then remand for further proceedings. That approach, however, is in tension with the “ordinary ‘remand’ rule.” Ventura, supra, at 18; see also Cajun Elec. Power Cooperative, Inc. v. FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion for the Court by Silberman, J., joined by R. Ginsburg and Thomas, JJ.) (“[I]f an agency erroneously contends that Congress’ intent has been clearly expressed and has rested on that ground, we remand to require the agency to consider the question afresh in light of the ambiguity we see”). Thomas is illustrative. There, the agency had not determined whether a family may constitute a social group for the purposes of refugee status. The Ninth Circuit held that the family can constitute a protected social group and that the particular family at issue did qualify. 547 U. S., at 184–185. The Solicitor General sought review in this Court on “whether the Ninth Circuit erred in holding, in the first instance and without prior resolution of the questions by the relevant administrative agency, that members of a family can and do constitute a particular social group, within the meaning of the Act.” Id., at 185 (internal quotation marks omitted). He argued that the Ninth Circuit’s decision violated the Ventura ordinary remand rule. We agreed and summarily reversed. 547 U. S., at 184–185

Ventura and Thomas counsel a similar result here. Because of the important differences between the statute before us and the one at issue in Fedorenko, we find it appropriate to remand to the agency for its initial determination of the statutory interpretation question and its application to this case. The agency’s interpretation of the statutory meaning of “persecution” may be explained by a more comprehensive definition, one designed to elaborate on the term in anticipation of a wide range of potential conduct; and that expanded definition in turn may be influenced by how practical, or impractical, the standard would be in terms of its application to specific cases. These matters may have relevance in determining whether its statutory interpretation is a permissible one.

As the Court said in Ventura and reiterated in Thomas, “ ‘[t]he agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.’ ” 547 U. S., at 186–187 (quoting Ventura, supra, at 17). If the BIA decides to adopt a standard that considers voluntariness to some degree, it may be prudent and necessary for the Immigration Judge to conduct additional factfinding based on the new standard. Those determinations are for the agency to make in the first instance.

* * *

We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Scalia, J., concurring

SUPREME COURT OF THE UNITED STATES

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court ofappeals for the fifth circuit
[March 3, 2009]

Justice Scalia, with whom Justice Alito joins, concurring.

I agree with the Court that “the statute has an ambiguity,” ante, at 5, with respect to whether an alien who was coerced to assist in persecution is barred from obtaining asylum in the United States. I agree that the agency is entitled to answer that question. Ibid. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) . And I agree that a remand is in order, to give the agency an opportunity to clarify whether its affirmative answer was premised on an erroneous view that this Court’s decision in Fedorenko v. United States, 449 U. S. 490 (1981) , compelled it. Ante, at 11.

I would not agree to remand if I did not think that the agency has the option of adhering to its decision. The majority appears to leave that question undecided, ante, at 5 (reserving whether “a particular agency interpretation is reasonable”); two Justices forthrightly disagree and would require the agency to recognize at least some sort of duress exception, post, at 7 (Stevens, J., concurring in part and dissenting in part).

But good reasons for the agency’s current practice exist—reasons adequate to satisfy the requirement that an agency act reasonably in choosing among various possible constructions of an ambiguous statute. The statute does not mandate the rule precluding the duress defense but does not foreclose it either; the agency is free to retain that rule so long as the choice to do so is soundly reasoned, not based on irrelevant or arbitrary factors (like the Fedorenko precedent).

The primary contention to the contrary is, in short, that barring aliens who persecuted under duress would punish purely “nonculpable” conduct. That argument suffers from at least three unjustified leaps of logic.

First, it implicitly adopts a view of “culpability” that is neither the only view nor one necessarily applicable here. The culpability of one who harms another under coercion is, and has always been, a subject of intense debate, raising profound questions of moral philosophy and individual responsibility. (The so-called “Nuremberg defense” comes readily to mind.) At common law, duress was not an accepted defense to intentional killing, see 2 W. LaFave, Substantive Criminal Law §9.7(b), pp. 74–75 (2d ed. 2003); and in modern times, some states do not allow it as a defense to lesser crimes, see id., at 81–82, and n. 50. Notably, there is no historical support for the duress defense when a soldier follows a military order he knows to be unlawful. Id.,§9.7(g), at 86; see also, e.g., Axtell’s Case, Kel. J. 13, 84Eng. Rep. 1060 (1660); Prosecutor v. Erdemovi, [1997] 2 ICTY Jud. Rep. 1610, 1635 (Int’l Crim. Trib. for Former Yugoslavia). It is therefore far from clear that precluding a duress defense here would, as petitioner alleges, “disregard principles of blame . . . ‘universal and persistent’ in American law.” Brief for Petitioner 32 (quoting Morissette v. United States, 342 U. S. 246, 250 (1952) ). All of this suggests that those who are coerced to commit wrong are at least sometimes “culpable” enough to be treated as criminals.

More importantly, this is not a criminal matter. This Court has long understood that an “order of deportation is not a punishment for crime.” Fong Yue Ting v. United States, 149 U. S. 698, 730 (1893) . Asylum is a benefit accorded by grace, not by entitlement, and withholding that benefit from all who have intentionally harmed others—whether under coercion or not—is not unreasonable.

Second, petitioner assumes that the persecutor bar must have been intended merely to punish wrongdoing. But in the context of immigration law, “culpability” as a relevant factor in determining admissibility is only one facet of a more general consideration: desirability. And there may well be reasons to think that those who persecuted others, even under duress, would be relatively undesirable as immigrants. If, for example, the asylum laws grant entry to those who suffered the persecution, might it not be imprudent to also grant entry to the coerced persecutor, who may end up living in the same community as one of his victims? The Nation has a legitimate interest in preventing the importation of ethnic strife from remote parts of the world, and the agency may resolve the statutory ambiguity in a way that safeguards that interest.

Finally, even if culpability is the only relevant factor, and even if a narrow, criminal-law based view of culpability is the authoritative one, a bright-line rule excluding all persecutors—whether acting under coercion or not—might still be the best way for the agency to effectuate the statutory scheme. See generally Cox & Posner, Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809 (2007). Immigration judges already face the overwhelming task of attempting to recreate, by a limited number of witnesses speaking through (often poor-quality) translation, events that took place years ago in foreign, usually impoverished countries. See Dia v. Ashcroft, 353 F. 3d 228, 261–262 (CA3 2003) (en banc) (Alito, J., concurring in part and dissenting in part). Adding on top of that the burden of adjudicating claims of duress and coercion, which are extremely difficult to corroborate and necessarily pose questions of degree that require intensely fact-bound line-drawing, would increase the already inherently high risk of error. And the cost of error (viz., allowing uncoerced persecutors to remain in the country permanently) might reasonably be viewed by the agency as significantly greater than the cost of overinclusion under a bright-line rule (viz., denial of asylum to some coerced persecutors—who might anyway be entitled to protection under the Convention Against Torture, which includes no analogous persecutor bar).

It is worth noting that although the agency’s “objective effects” approach to the statute would seem to sweep beyond the duress scenario to encompass even an alien who had no idea that his actions would “objectively” assist in persecution, see CastaÅ„eda-Castillo v. Gonzales, 488 F. 3d 17, 20 (CA1 2007) (en banc), there is no reason why the agency cannot consider questions of knowledge separate and apart from questions of duress. Both can be said to relate to the mental state of the persecutor,** but they present different problems which can be grappled with separately. The agency need not provide an “all-embracing answer,” ibid., in the present case. It may evaluate problems one by one as they arise, and whatever it might decide about an unknowing persecutor is irrelevant to petitioner, who knew exactly what he was doing.

To be clear, I do not endorse any particular rule. It is to agency officials, not to the Members of this Court, that Congress has given discretion to choose among permissible interpretations of the statute. They deserve to be told clearly whether we are serious about allowing them to exercise that discretion, or are rather firing a warning shot across the bow.

Thomas, J., dissenting

SUPREME COURT OF THE UNITED STATES

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court ofappeals for the fifth circuit
[March 3, 2009]

Justice Thomas, dissenting.

The “persecutor bar” in the Immigration and Nationality Act (INA) denies asylum and the withholding of removal to any alien who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §§1101(a)(42). The Board of Immigration Appeals (BIA), principally relying on this Court’s decision in Fedorenko v. United States, 449 U. S. 490 (1981) , held that the statute does not require that the persecution be voluntarily inflicted. The Court of Appeals for the Fifth Circuit affirmed.

According to the Court, Fedorenko, which construed the similar text of a persecution bar in the Displaced Persons Act of 1948 (DPA), is largely irrelevant to the question presented here. See ante, at 6–8, 9–10; see also ante, at 2 (Scalia, J., concurring). The majority further holds that the INA is ambiguous as to “whether coercion or duress is relevant in determining if an alien assisted or otherwise participated in persecution” and that the agency, therefore, should interpret the statute in the first instance to determine whether it reasonably can be read to include a voluntariness requirement. Ante, at 5, 10–12; see also ante, at 1 (Scalia, J., concurring). I disagree with both of these conclusions. Because the INA unambiguously precludes any inquiry into whether the persecutor acted voluntarily, i.e., free from coercion or duress, I would affirm the judgment of the Court of Appeals. I respectfully dissent.

I

Petitioner Daniel Girmai Negusie testified to the Immigration Judge (IJ) that he was forced to work as an armed guard for four years at an Eritrean prison camp where prisoners were persecuted because of their religious beliefs. According to petitioner, part of his job was “to firmly control the prisoners, to punish the prisoners, too, by exposing them” to the extreme heat of the African sun. App. 58. The guards “would … hold [a] stick [with] their hand” and follow prisoners who were being forced to “roll on the ground in the sun.” Id., at 23. Because “it was extremely hot,” prisoners would quickly “get tired and [feel] shortness of breath and stop” rolling. Id., at 24. They were then beaten. Prisoners typically could not survive this punishment for more than two hours. Indeed, at least one prisoner died from sun exposure while petitioner stood guard. See ante, at 3 (majority opinion).

Petitioner testified that, as a guard, he prevented the prisoners from showering and forbade them from leaving their rooms for fresh air. This form of punishment was particularly severe because the prisons were “built from stone and bricks” with “no cooling system, no ventilation, no windows,” and intolerable heat. App. 20, 30. Petitioner also prevented prisoner escapes, for which the punishment was forced sun exposure. And, although petitioner never used “electricity to torture” prisoners, he was aware that his supervisor did. Id., at 61–62.

But petitioner, who had converted to Protestantism when he was confined as a prisoner at the camp, also testified that he did not want to persecute any of the prisoners because his new religion taught him “to be merciful.” Id., at 34. Thus, at times he disobeyed his orders. On one occasion, he gave water to a prisoner who was dying from sun exposure. On another occasion, he let female prisoners take showers after they had been denied that privilege “for a long time.” Id., at 37. Petitioner also occasionally allowed some of the prisoners to “go outside during the night and during the evenings and … refresh themselves in the fresh air.” Id., at 37–38.

After four years as a prison guard, petitioner deserted his post, swam to a shipping container, and hid inside. See ante, at 3 (majority opinion). The container arrived in the United States with petitioner inside on December 20, 2004. Petitioner applied for asylum and the withholding of removal under the INA, 8 U. S. C. §1101 et seq. He also applied for protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), under which it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” Foreign Affairs Reform and Restructuring Act of 1998, §2242(a), 112 Stat. 2681–822, note following 8 U. S. C. §1231, p. 263 (United States Policy with Respect to Involuntary Return of Persons in Danger of Subjection to Torture (hereinafter CAT Policy)). See also CAT, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 85. Petitioner feared that, if returned to Eritrea, he would “be executed” because he had converted to Protestantism and deserted his military post. App. 65, 68.

The INA provides the Executive with the discretion to grant asylum to aliens that are “unable or unwilling” to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §§1101(a)(42)(A). The INA also requires the Executive to withhold removal of aliens to a country in which there is a “clear probability” that their “life or freedom would be threatened” because of their “race, religion, nationality, membership in a particular social group, or political opinion.” §1231(b)(3)(A). However, the INA prohibits the Executive from granting asylum or withholding removal if an alien “ordered, incited, assisted, or otherwise participated in the persecution” of any person on account of “race, religion, nationality, membership in a particular social group, or political opinion.” §1158(b)(2)(A)(i) (asylum); §1231(b)(3)(B) (withholding of removal). Nonetheless, in light of the CAT’s requirement that “[n]o State Party shall … return … a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture,” Art. 3, S. Treaty Doc. No. 100–20, at 20, regulations implementing that convention provide “deferral of removal” to aliens subject to the INA persecutor bar who would more likely than not be tortured if removed to their home country.1 8 CFR §§1208.16(c)(4), (d)(2), 1208.17(a) (2008); see also CAT Policy (b), at 263 (requiring federal agencies to “prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention”).

The IJ denied petitioner’s applications for asylum and the withholding of removal, but granted him deferral of removal. The BIA affirmed. In their view, petitioner’s conduct objectively qualified as assistance or participation in the persecution of others based on religion. See ante, at 3 (majority opinion). Relying on Fedorenko, the IJ and BIA found that even if petitioner was “compelled to participate as a prison guard” against his wishes, his “motivation and intent are irrelevant to the issue of whether he ‘assisted’ in persecution.” Ibid. (some internal quotation marks omitted). Therefore, petitioner was ineligible for asylum or the withholding of removal under the INA. The IJ and BIA agreed, however, that petitioner qualified for deferral of removal because it is “more likely than not that he would be tortured” if returned to Eritrea given that its “government has used deadly force and threatened to use deadly force against deserters.” App. to Pet. for Cert. 7a–8a, 20a, 19a. The Court of Appeals affirmed. See Negusie v. Gonzales, 231 Fed. Appx. 325, 326 (CA5 2007) (per curiam).
II
[/align]