Negusie v. Holder, 555 U. S. ____ (2009)

[هيثم الفقى]

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As with all statutory interpretation questions, construction of the INA’s persecutor bar must begin with the plain language of the statute. See Jimenez v. Quarterman, 555 U. S. ___, ___ (2009) (slip op., at 5) (citing Lamie v. United States Trustee, 540 U. S. 526, 534 (2004) ). If the text of a statute governing agency action “ ‘directly addresse[s] the precise question at issue,’ ” then, “ ‘that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 664 , ___ (2007) (slip op., at 18) (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843 (1984) ).

A

A court must first “look to the particular statutory language at issue.” K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988) . As the majority acknowledges, see ante, at 5–6, the text of the INA’s persecutor bar neither includes the term “voluntary” nor contains an exception for involuntary, coerced conduct. The statute instead applies to any alien “who ordered, incited, assisted, or otherwise participated in the persecution of any person” on account of a protected ground. §§1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).

The statute’s key terms also do not imply any voluntariness requirement for persecution. Under the ordinary meaning of the term “persecution” at the time of the statute’s enactment in 1980 and its reenactment in 1996, the act of persecution alone is sufficient to classify one’s conduct as persecution. See Webster’s Ninth New Collegiate Dictionary 877 (1991) (hereinafter Webster’s Ninth) (defining “persecution” as “the act or practice of persecuting esp. those who differ in origin, religion, or social outlook”); see also Webster’s New Collegiate Dictionary 855 (1975) (hereinafter Webster’s) (same). The term itself includes no intrinsic mens rea requirement. As a result, an individual can “persecute”—meaning “harass in a manner designed to injure, grieve, or afflict”—without having designed the act or intended for injury, grief, or affliction to occur. Webster’s Ninth 877; see also Webster’s 855 (same).

The persecutor bar’s inclusion of those who “assist” or “participate” confirms that it does not include a voluntariness requirement. The term “assist” is defined as “to give support or aid,” Webster’s Ninth 109, or “to help,” Oxford American Dictionary 36 (1980) (hereinafter Oxford). See also Black’s Law Dictionary 111 (5th ed. 1979) (hereinafter Black’s) (defining “assist” as “[t]o help; aid; succor; lend countenance or encouragement to; participate in as an auxiliary”). And “participate” means simply “to take part,” Webster’s Ninth 858, or “to have a share, to take part in something,” Oxford 487; see also Black’s 1007 (defining “participate” as “[t]o receive or have a part or share of; to partake of; experience in common with others; to have or enjoy a part or share in common with others”). Accordingly, this Court has concluded that the ordinary meanings of “assist” and “participate” do not “connote voluntariness.” Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 211 (1998) (participate); see also Fedorenko, 449 U. S., at 512 (assist). These are “terms and concepts of breadth,” Russello v. United States, 464 U. S. 16, 21–22 (1983) , that require only that an individual take “some part in” an activity, or help it to occur in some way. Reves v. Ernst & Young, 507 U. S. 170, 178–179 (1993) (emphasis in original). Even if participation or assistance is coerced, it remains participation or assistance just the same.

B

In addition to the particular statutory section of the INA before the Court, “the language and design of the statute as a whole” is instructive in determining the provision’s plain meaning. K mart Corp., supra, at 291; see also Amoco Production Co. v. Gambell, 480 U. S. 531, 552–553 (1987) . Here, the INA’s design and structure buttress the conclusion that the persecutor bar applies irrespective of voluntariness.

First, Congress has evidenced its ability to both specifically require voluntary conduct and explicitly exclude involuntary conduct in other provisions of the INA. See infra, at 15–16. For example, Congress has barred admission to the United States of totalitarian party members unless their membership was “involuntary,” 8 U. S. C. §1182(a)(3)(D)(ii), and it has provided for the termination of asylum when an alien “has voluntarily availed himself or herself” of another country’s protections, §1158(c)(2)(D). “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello, supra, at 23 (internal quotation marks omitted); see, e.g., Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452–454 (2002) . The absence of a voluntariness requirement in the INA persecutor bar is no exception.

Second, federal immigration law provides calibrated remedies, which include partial refuge for specified aliens who have both suffered from and inflicted persecution. Those who have been persecuted and have not engaged in persecution may receive both asylum and the withholding of removal. §§1231(b)(3)(A), 1158(b)(1)(A). Those at the other end of the spectrum, who have not been persecuted but have persecuted others, may not receive either asylum or the withholding of removal. §§1231(b)(3)(B)(i), 1158(b)(2)(A)(i). And finally, for many individuals who (like petitioner) have both persecuted others and been persecuted, the scheme provides temporary refuge; they will receive deferral of removal under the CAT if they will face torture upon their return to their home country. CAT Policy (a), at 263; see also 8 CFR §§1208.13(a), 1208.16(d)(2).

Where “Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions,” courts should not read one part of the legislative regime (the INA) to provide a different, and conflicting, solution to a problem that has already been specifically addressed elsewhere in the federal immigration regime (regulations implementing the CAT). Varity Corp. v. Howe, 516 U. S. 489, 519 (1996) (Thomas, J., dissenting); see also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19 (1979) . Federal law provides only partial protection to a victim of persecution who has also engaged in persecution, voluntarily or not. There simply is no justification for writing into the INA’s persecutor bar the greater protections of asylum and the withholding of removal for individuals who were coerced into engaging in persecution. That is, the “assumption of inadvertent omission” of a voluntariness requirement in the INA “is rendered especially suspect upon close consideration of [a statute’s] interlocking, interrelated, and interdependent remedial scheme” that addresses the specific problem at issue in a conflicting way. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 146–147 (1985) .2

C

Finally, Congress is aware of a judicial interpretation of statutory language and “adopt[s] that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U. S. 575, 580 (1978) ; see also Traynor v. Turnage, 485 U. S. 535, 546 (1988) ; 2B N. Singer & J. Singer, Sutherland on Statutory Construction §49.9, pp. 127–133 (7th ed. 2008). Here, the statutory and decisional backdrop against which Congress enacted the INA’s persecutor bar counsels against grafting a voluntariness requirement onto the statute.

When Congress enacted the INA’s persecutor bar, it essentially retained the language used in similar predecessor statutes. Under the 1948 DPA persecutor bar, entry was denied to all who “ ‘assisted the enemy in persecuting civil[ians].’ ” Fedorenko,449 U. S., at 495 (quoting 62 Stat. 3051). In 1950, Congress added a second persecutor bar to the DPA that applied “to any person who advocated or assisted in the persecution of any person because of race, religion, or national origin.” §13, 64 Stat. 227. In the years that followed, Congress continued to use this same broad language in denying asylum to specific categories of persecutors. See, e.g., §105, 91 Stat. 1224 (denying permanent residence to aliens from Vietnam, Laos, and Cambodia “who ordered, assisted, or otherwise participated in the persecution of any person because of race, religion, or political opinion”); 8 U. S. C. §§1182(a)(3)(E)) (authorizing the exclusion of anyone who had been associated with Nazi forces and had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion”); §14(a), 67 Stat. 406 (imposing persecutor bar on “any person who personally advocated or assisted in the persecution of … [a] group of persons because of race, religion, or national origin”).

Congress then enacted the INA bar in 1980. This statute comprehensively labeled as a persecutor “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” §201(a), 94 Stat. 102–103. Congress reenacted the INA’s persecutor bar in 1996 and retained its breadth. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §§305(b)(3)(B)(i), 601(a)(1), 604(b)(2)(A)(i), 110 Stat. 3009–602, 689, 691.

Congress’ uninterrupted use of this broad statutory language, which parallels the persecutor bars dating back to 1948, was not accidental. By the time of the 1996 reenactment, this Court had specifically interpreted the plain language of the predecessor bars to apply regardless of the voluntariness of a persecutor’s conduct. See Fedorenko, supra, at 512 (1948 DPA bar); see also United States v. Koreh, 59 F. 3d 431, 439 (CA3 1995) (1950 DPA bar); United States v. Schmidt, 923 F. 2d 1253, 1258 (CA7 1991) (1948 DPA bar); Maikovskis v. INS, 773 F. 2d 435, 445–446 (CA2 1985) ( 8 U. S. C. §1251(a)(19) (1982 ed.), transferred to §1227(a)(4)(D) (2006 ed.)). In particular, this Court had held that the phrase in the 1948 DPA bar, “assisted the enemy in persecuting civil[ians],” contained no “ ‘involuntary assistance’ exception.” Fedorenko, 449 U. S.,at 512. Rather, the statute’s “plain language” made clear that “an individual’s service as a concentration camp armed guard—whether voluntary or involuntary—made him ineligible for a visa.” Ibid.

In light of this legal backdrop, Congress’ decisions in 1980 and 1996 to retain a persecutor bar that broadly applies to anyone who “assisted, or otherwise participated in the persecution” of any person, §§1158(b)(2)(A)(i), 1231(b)(3)(B), is significant evidence that Congress did not intend to include any involuntariness exception in the INA bar. This Court must assume, absent textual proof to the contrary, that Congress was aware of the Fedorenko decision when it reenacted the persecutor bar and thus “adopt[ed] that interpretation when it re-enact[ed the] statute without change,” Lorillard, supra, at 580.

D

In sum, the INA’s persecutor bar does not require that assistance or participation in persecution be voluntary or uncoerced to fall within the statute’s reach. It instead “mandates precisely” what it says: “[A]n individual’s service as a [prison] camp armed guard—whether voluntary or involuntary—ma[kes] him ineligible for” asylum or withholding of removal if the guard’s service involved assistance or participation in the persecution of another person on account of a protected ground. Fedorenko, supra, at 512. Here, it is undisputed that petitioner served at a prison camp where guards persecuted prisoners because of their religious beliefs. See ante, at 2–3 (majority opinion). It also is undisputed that petitioner carried out the persecution by preventing prisoners from escaping and by standing guard while at least one prisoner died from sun exposure. Ibid. Petitioner, therefore, “assisted, or otherwise participated” in persecution and thus is statutorily disqualified from receiving asylum or withholding of removal under the INA. 3

III

The majority nevertheless concludes the statute’s “silence,” ante, at 6, creates ambiguity, and therefore remands the case to the BIA for it to determine, in the first instance, whether persecution must be voluntary to fall within the terms of the INA’s persecutor bar. “The Court’s efforts to derive ambiguity from th[e] utmost clarity” of the persecutor bar, however, “are unconvincing” in every respect. INS v. St. Cyr, 533 U. S. 289, 329 (2001) (Scalia, J., dissenting).

The majority principally finds ambiguity in the statutory text because it does not include either the word “voluntary” or the word “involuntary.” See ante, at 7. But a statute cannot be deemed ambiguous until the court “exhaust[s] the aid of the ‘traditional tools of statutory construction’ ” and determines that Congress did not resolve the issue under consideration. Clark v. Martinez, 543 U. S. 371, 402 (2005) (Thomas, J., dissenting) (quoting Chevron, 467 U. S., at 843, n. 9). Deeming a statute with broad terms to be ambiguous for that reason alone essentially requires Congress either to obey a judicially imposed clear-statement rule or accept the risk that the courts may refuse to give full effect to a statute’s plain meaning in the name of Chevron deference. Not every difficult question of statutory construction amounts to a statutory gap for a federal agency to fill. See ante, at 1–4 (opinion of Stevens, J.). And the Court should not, “in the name of deference, abdicate its responsibility to interpret a statute” simply because it requires some effort. Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. 45, 77 (2007) (Thomas, J., dissenting).
The majority makes no attempt to apply the “traditional tools of statutory construction” to the persecutor bar before retreating to ambiguity. See ante, at 5–6. Rather, it merely observes that Congress could have spoken more directly to the issue, which it finds sufficient to render the statute ambiguous on this score. Ante, at 6. But the absence of a phrase specifying that the provision applies to both involuntary and voluntary conduct is not definitive proof of ambiguity. It is certainly correct that Congress “ ‘could have spoken in clearer terms,’ ” Clark, 543 U. S., at 402 (Thomas, J., dissenting), as it almost always can in any statute. However, this “proves nothing” in evaluating whether the statute is ambiguous. Ibid. The question before the Court instead is whether Congress has provided an unambiguous answer in the plain language that it chose to use. Here, for the reasons just explained, the traditional tools of statutory interpretation show with “utmost clarity,” St. Cyr, supra, at 329, that the statute applies regardless of the voluntariness of the alien who participates or assists in persecution.4
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