The Supremes Speak

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3 Responses

  1. Matt says:

    It seems to me that Scalia’s argument would have more force if the rules for granting withholding of removal didn’t have the same language. To my mind, the best way to understand the withholding rule is that it recognizes that there are some people who legitimately need protection but who, for various reasons, we do not think should have the option to become citizens, as those granted asylum eventually do. This seems quite reasonable to me. I’m pretty skeptical that all former persecutors, including those who were clearly and seriously coerced into taking part in the persecution, fall into the category of people who we want to prevent from having access to citizenship. From what I understand about Negusie’s case, it seems unreasonable to me to see him in that light. But, having such a category does not seem unreasonable. But if the withholding rule has the same “persecutor” bar, and it’s applied the same way, this makes the categorical application of the rule much more suspect from a moral point of view, it seems to me. (My preference would be for the “persecutor” bar to be read to have exceptions both for asylum and withholding, but if we don’t at least have one for withholding, then it seems to me that Scalia’s argument is not a very good one.)

  2. Jaya says:

    Thanks for your comment, Matt. While withholding of removal has the same persecutor bar, deferral of removal under the Convention Against Torture does not — and that’s what Scalia relies upon in his argument. (I discuss the CAT issue further on IntLawGrrls: http://intlawgrrls.blogspot.com/2009/03/cats-double-edged-sword.html).

  3. Matt says:

    Hi Jaya,- thanks for pointing me to the other post- it was very interesting. I agree that CAT withholding and similar lesser remedies can’t be a general substitute for asylum. It’s not even a substitute for “normal” withholding, as you of course know, since it’s pretty hard to get, both because of the evidentiary standards and because of the stronger state-actor standards. The second, in particular, seems to me important in cases where we are considering someone who was a non-willing persecutor, as it’s not hard to imagine the danger not directly coming from the state in those cases.