NEGUSIE v. HOLDER, ATTORNEY GENERAL

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511 OCTOBER TERM, 2008
Syllabus
NEGUSIE v. HOLDER, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the fifth circuit
No. 07–499. Argued November 5, 2008—Decided March 3, 2009
The Immigration and Nationality Act (INA) bars an alien from obtaining
refugee status in this country if he “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). This so-called “persecutor bar” applies to those seeking
asylum or withholding of removal, but does not disqualify an alien from
receiving a temporary deferral of removal under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT). During the time petitioner, an Eritrean national,
was forced to work as a prison guard in that country, the prisoners
he guarded were persecuted on grounds protected under § 1101(a)(42).
After escaping to the United States, petitioner applied for asylum and
withholding of removal. Concluding that he assisted in the persecution
of prisoners by working as an armed guard, the Immigration Judge de
nied relief on the basis of the persecutor bar, but granted deferral of
removal under CAT because petitioner was likely to be tortured if re
turned to Eritrea. The Board of Immigration Appeals (BIA) affirmed
in all respects, holding, inter alia, that the persecutor bar applies even
if the alien’s assistance in persecution was coerced or otherwise the
product of duress. The BIA followed its earlier decisions finding Fed
orenko v. United States, 449 U. S. 490, controlling. The Fifth Circuit
affirmed, relying on its precedent following the same reasoning.
Held: The BIA and Fifth Circuit misapplied Fedorenko as mandating that
whether an alien is compelled to assist in persecution is immaterial for
persecutor-bar purposes. The BIA must interpret the statute, free
from this mistaken legal premise, in the first instance. Pp. 516–525.
(a) Under Chevron U. S. A. Inc. v. Natural Resources Defense Coun
cil, Inc., 467 U. S. 837, 842–843, the BIA is entitled to deference in inter
preting ambiguous INA provisions, see, e. g., INS v. Aguirre-Aguirre,
526 U. S. 415, 424–425. When the BIA has not spoken on “a matter
that statutes place primarily in agency hands,” this Court’s ordinary
rule is to remand to allow “the BIA . . . to address the matter in the
first instance in light of its own experience.” INS v. Orlando Ventura,
537 U. S. 12, 16–17. Pp. 516–517.

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Syllabus
(b) As there is substance both to petitioner’s contention that involun
tary acts cannot implicate the persecutor bar because “persecution” pre
sumes moral blameworthiness, and to the Government’s argument that
the question at issue is answered by the statute’s failure to provide an
exception for coerced conduct, it must be concluded that the INA has
an ambiguity that the BIA should address in the first instance. Fedo
renko, which addressed a different statute enacted for a different pur
pose, does not control the BIA’s interpretation of this persecutor bar.
In holding that voluntariness was not required with respect to such a
bar in the Displaced Persons Act of 1948 (DPA), Fedorenko contrasted
the omission there of the word “voluntary” with the word’s inclusion in
a related statutory subsection. 449 U. S., at 512. Because Congress
did not use the word “voluntary” anywhere in the persecutor bar at
issue here, its omission cannot carry the same significance as it did in
Fedorenko. Moreover, the DPA’s exclusion of even those involved in
nonculpable, involuntary assistance in persecution was enacted in part
to address the Holocaust and its horror, see id., at 511, n. 32, whereas
the persecutor bar in this case was enacted as part of the Refugee Act
of 1980, which was designed to provide a general rule for the ongoing
treatment of all refugees and displaced persons, see, e. g., Aguirre-
Aguirre, supra, at 427. Pp. 517–520.
(c) Whether a BIA determination that the persecution bar contains
no exception for coerced conduct would be reasonable, and thus owed
Chevron deference, is a legitimate question; but it is not presented here.
In denying petitioner relief, the BIA recited a rule it has developed in
its cases: An alien’s motivation and intent are irrelevant to the issue
whether he “assisted” in persecution; rather, his actions’ objective effect
controls. A reading of those decisions confirms that the BIA has not
exercised its interpretive authority but, instead, has deemed its inter
pretation to be mandated by Fedorenko. This error prevented the BIA
from fully considering the statutory question presented. Its mistaken
assumption stems from a failure to recognize the inapplicability of the
statutory construction principle invoked in Fedorenko, as well as a fail
ure to appreciate the differences in statutory purpose. The BIA is not
bound to apply the Fedorenko rule to the persecutor bar here at issue.
Whether the statute permits such an interpretation based on a different
course of reasoning must be determined in the first instance by the
agency. Pp. 521–523.
(d) Because the BIA has not yet exercised its Chevron discretion to
interpret the statute, the proper course is to remand to it for additional
investigation or explanation, e. g., Gonzales v. Thomas, 547 U. S. 183,
186, allowing it to bring its expertise to bear on the matter, evaluate
the evidence, make an initial determination, and thereby help a court

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later determine whether its decision exceeds the leeway that the law
provides, e. g., id., at 186–187. Pp. 523–524.
231 Fed. Appx. 325, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J.,
filed a concurring opinion, in which Alito, J., joined, post, p. 525. Ste
vens, J., filed an opinion concurring in part and dissenting in part, in
which Breyer, J., joined, post, p. 528. Thomas, J., filed a dissenting opin
ion, post, p. 538.
Andrew J. Pincus argued the cause for petitioner. With
him on the briefs were Charles A. Rothfeld and Dan Kahan.
Assistant Attorney General Katsas argued the cause for
respondent. With him on the brief were former Solicitor
General Garre, then-Deputy Solicitor General Kneedler,
Deputy Assistant Attorney General Dupree, Nicole A. Sa
harsky, Donald E. Keener, Keith I. McManus, and Jennifer
J. Keeney.*
Justice Kennedy delivered the opinion of the Court.
An alien who fears persecution in his homeland and seeks
refugee status in this country is barred from obtaining that
relief if he has persecuted others.
“The term ‘refugee’ does not include any person who
ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, reli
gion, nationality, membership in a particular social
group, or political opinion.” Immigration and National
*Briefs of amici curiae urging reversal were filed for Advocates for
Human Rights by Benjamin Casper and Heather McElroy; for the Ameri
can Jewish Congress et al. by Charles G. Moerdler, Christian Fletcher,
Marc D. Stern, Jeffrey P. Sinensky, and Kara H. Stein; for the Becket
Fund for Religious Liberty et al. by Eric C. Rassbach; for Human Rights
First et al. by Steven H. Schulman and Patricia A. Millett; for the Office
of the United Nations High Commissioner for Refugees by H. Elizabeth
Dallam and Pamela Goldberg; and for Scholars of International Refugee
Law by Mark C. Fleming and Deborah Anker.

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514 NEGUSIE v. HOLDER
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ity Act (INA), § 101, 66 Stat. 166, as added by Refu
gee Act of 1980, § 201(a), 94 Stat. 102–103, 8 U. S. C.
§ 1101(a)(42).
This so-called “persecutor bar” applies to those seeking
asylum, § 1158(b)(2)(A)(i), or withholding of removal,
§ 1231(b)(3)(B)(i). It does not disqualify an alien from re
ceiving a temporary deferral of removal under the Conven
tion Against Torture and Other Cruel, Inhuman or Degrad
ing Treatment or Punishment (CAT), art. 3, Dec. 10, 1984,
S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR
§ 1208.17(a) (2008).
In this case the Board of Immigration Appeals (BIA) de
termined that the persecutor bar applies even if the alien’s
assistance in persecution was coerced or otherwise the prod
uct of duress. In so ruling the BIA followed its earlier deci
sions that found Fedorenko v. United States, 449 U. S. 490
(1981), controlling. The Court of Appeals for the Fifth Cir
cuit, in affirming the agency, relied on its precedent following
the same reasoning. We hold that the BIA and the Court
of Appeals misapplied Fedorenko. We reverse and remand
for the agency to interpret the statute, free from the error,
in the first instance.
I
Petitioner in this Court is Daniel Girmai Negusie, a dual
national of Eritrea and Ethiopia, his father having been a
national of the former and his mother of the latter. Born
and educated in Ethiopia, he left there for Eritrea around
the age of 18 to see his mother and find employment. The
year was 1994. After a few months in Eritrea, state officials
took custody of petitioner and others when they were attend
ing a movie. He was forced to perform hard labor for a
month and then was conscripted into the military for a time.
War broke out between Ethiopia and Eritrea in 1998, and he
was conscripted again.

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When petitioner refused to fight against Ethiopia, his
other homeland, the Eritrean Government incarcerated him.
Prison guards punished petitioner by beating him with sticks
and placing him in the hot sun. He was released after two
years and forced to work as a prison guard, a duty he per
formed on a rotating basis for about four years. It is undis
puted that the prisoners he guarded were being persecuted
on account of a protected ground—i. e., “race, religion, na
tionality, membership in a particular social group, or political
opinion.” 8 U. S. C. § 1101(a)(42). Petitioner testified that
he carried a gun, guarded the gate to prevent escape, and
kept prisoners from taking showers and obtaining fresh air.
He also guarded prisoners to make sure they stayed in the
sun, which he knew was a form of punishment. He saw at
least one man die after being in the sun for more than two
hours. Petitioner testified that he had not shot at or di
rectly punished any prisoner and that he helped prisoners on
various occasions. Petitioner escaped from the prison and
hid in a container, which was loaded on board a ship heading
to the United States. Once here he applied for asylum and
withholding of removal.
In a careful opinion the Immigration Judge, W. Wayne
Stogner, found that petitioner’s testimony, for the most part,
was credible. He concluded that petitioner assisted in per
secution by working as an armed guard. The judge deter
mined that although “there’s no evidence to establish that
[petitioner] is a malicious person or that he was an aggres
sive person who mistreated the prisoners, . . . the very fact
that he helped [the government] in the prison compound
where he had reason to know that they were persecuted con
stitutes assisting in the persecution of others and bars [peti
tioner] from” obtaining asylum or withholding of removal.
App. to Pet. for Cert. 16a–17a (citing, inter alia, Fedorenko,
supra). The judge, however, granted deferral of removal
under CAT because petitioner was likely to be tortured if
returned to Eritrea.

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The BIA affirmed the denial of asylum and withholding.
It noted petitioner’s role as an armed guard in a facility
where “prisoners were tortured and left to die out in the
sun . . . on account of a protected ground.” App. to Pet. for
Cert. 6a. The BIA held that “[t]he fact that [petitioner] was
compelled to participate as a prison guard, and may not have
actively tortured or mistreated anyone, is immaterial.”
Ibid. That is because “ ‘an alien’s motivation and intent
are irrelevant to the issue of whether he “assisted” in
persecution . . . . [I]t is the objective effect of an alien’s
actions which is controlling.’ ” Ibid. (quoting Matter of
Fedorenko, 19 I. & N. Dec. 57, 69 (BIA 1984)). The BIA also
affirmed the grant of deferral of removal under CAT.
On petition for review the Court of Appeals agreed with
the BIA that whether an alien is compelled to assist in perse
cution is immaterial for persecutor-bar purposes. Negusie
v. Gonzales, 231 Fed. Appx. 325, 326 (2007) (per curiam)
(citing Fedorenko, supra, at 512, n. 34). We granted certio
rari. 552 U. S. 1255 (2008).
II
Consistent with the rule in Chevron U. S. A. Inc. v. Natu
ral Resources Defense Council, Inc., 467 U. S. 837, 842–843
(1984), the BIA is entitled to deference in interpreting
ambiguous provisions of the INA. The question here is
whether an alien who was compelled to assist in persecution
can be eligible for asylum or withholding of removal. We
conclude that the BIA misapplied our precedent in Fed
orenko as mandating that an alien’s motivation and intent
are irrelevant to the issue whether an alien assisted in perse
cution. The agency must confront the same question free of
this mistaken legal premise.
A
It is well settled that “principles of Chevron deference
are applicable to this statutory scheme.” INS v. Aguirre-
Aguirre, 526 U. S. 415, 424 (1999). Congress has charged

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the Attorney General with administering the INA, and a
“ruling by the Attorney General with respect to all questions
of law shall be controlling.” 8 U. S. C. § 1103(a)(1). Judicial
deference in the immigration context is of special impor
tance, for executive officials “exercise especially sensitive po
litical functions that implicate questions of foreign relations.”
INS v. Abudu, 485 U. S. 94, 110 (1988). The Attorney Gen
eral’s decision to bar an alien who has participated in perse
cution “may affect our relations with [the alien’s native]
country or its neighbors. The judiciary is not well posi
tioned to shoulder primary responsibility for assessing the
likelihood and importance of such diplomatic repercussions.”
Aguirre-Aguirre, 526 U. S., at 425.
The Attorney General, in turn, has delegated to the BIA
the “ ‘discretion and authority conferred upon the Attorney
General by law’ ” in the course of “ ‘considering and deter
mining cases before it.’ ” Ibid. (quoting 8 CFR § 3.1(d)(1)
(1998)). As a consequence, “the BIA should be accorded
Chevron deference as it gives ambiguous statutory terms
‘concrete meaning through a process of case-by-case adjudi
cation.’ ” Aguirre-Aguirre, supra, at 425 (quoting INS v.
Cardoza-Fonseca, 480 U. S. 421, 448–449 (1987)). When the
BIA has not spoken on “a matter that statutes place primar
ily in agency hands,” our ordinary rule is to remand to “giv[e]
the BIA the opportunity to address the matter in the first
instance in light of its own expertise.” INS v. Orlando Ven
tura, 537 U. S. 12, 16–17 (2002) (per curiam).
B
The parties disagree over whether coercion or duress is
relevant in determining if an alien assisted or otherwise par
ticipated in persecution. As there is substance to both con
tentions, we conclude that the statute has an ambiguity that
the agency should address in the first instance.
Petitioner argues that the statute’s plain language makes
clear that involuntary acts do not implicate the persecutor

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bar because “ ‘persecution’ ” presumes moral blameworthi
ness. Brief for Petitioner 23–28. He invokes principles of
criminal culpability, concepts of international law, and the
rule of lenity. Id., at 28–45. Those arguments may be per
suasive in determining whether a particular agency interpre
tation is reasonable, but they do not demonstrate that the
statute is unambiguous. Petitioner all but conceded as
much at argument in this Court when he indicated that the
BIA has discretion to construe the duress defense in either
a narrow or a broad way. Tr. of Oral Arg. 20–24.
The Government, on the other hand, asserts that the stat
ute does not allow petitioner’s construction. “The statutory
text,” the Government says, “directly answers that question:
there is no exception” for conduct that is coerced because
Congress did not include one. Brief for Respondent 11.
We disagree. The silence is not conclusive. The question
is whether the statutory text mandates that coerced actions
must be deemed assistance in persecution. On that point
the statute, in its precise terms, is not explicit. Nor is this
a case where it is clear that Congress had an intention on
the precise question at issue. Cf. Cardoza-Fonseca, supra,
at 448–449.
The Government, like the BIA and the Court of Appeals,
relies on Fedorenko to provide the answer. This reliance is
not without some basis, as the Court there held that volun
tariness was not required with respect to another persecutor
bar. 449 U. S., at 512. To the extent, however, the Govern
ment deems Fedorenko to be controlling, it is in error.
In Fedorenko, the Court interpreted the Displaced Per
sons Act of 1948 (DPA), 62 Stat. 1009. The DPA was
enacted “to enable European refugees driven from their
homelands by the [second world] war to emigrate to the
United States without regard to traditional immigration quo
tas.” 449 U. S., at 495. Section 2(b) of the DPA provides
relief to “any displaced person or refugee as defined in Annex
I of the Constitution of the International Refugee Organiza

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tion” of the United Nations (IRO Constitution). 62 Stat.
1009. The IRO Constitution, as codified by Congress, ex
cludes any individual “who can be shown: (a) to have assisted
the enemy in persecuting civil populations of countries,
Members of the United Nations; or (b) to have voluntarily
assisted the enemy forces since the outbreak of the second
world war in their operations against the United Nations.”
Annex I, Pt. II, § 2, 62 Stat. 3051–3052.
The Fedorenko Court held that “an individual’s service as
a concentration camp armed guard—whether voluntary or
involuntary—made him ineligible for a visa” under § 2(a) of
the IRO Constitution. 449 U. S., at 512. That Congress did
not adopt a voluntariness requirement for § 2(a), the Court
noted, “is plain from comparing § 2(a) with § 2(b), which ex
cludes only those individuals who ‘voluntarily assisted the
enemy forces.’ ” Ibid. The Court relied on the principle of
statutory construction that “the deliberate omission of the
word ‘voluntary’ from § 2(a) compels the conclusion that the
statute made all those who assisted in persecution of civil
ians ineligible for visas.” Ibid.
Fedorenko does not compel the same conclusion in the case
now before us. The textual structure of the statute in Fed
orenko (“voluntary” is in one subsection but not the other)
is not part of the statutory framework considered here.
Congress did not use the word “voluntary” in any subsection
of the persecutor bar, so its omission cannot carry the same
significance.
The difference between the statutory scheme in Fedorenko
and the one here is confirmed when we “ ‘look not only to the
particular statutory language, but to the design of the stat
ute as a whole and to its object and policy.’ ” Dada v. Muka
sey, 554 U. S. 1, 16 (2008) (quoting Gozlon-Peretz v. United
States, 498 U. S. 395, 407 (1991)). Both statutes were
enacted to reflect principles set forth in international agree
ments, but the principles differ in significant respects.

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As discussed, Congress enacted the DPA in 1948 as part
of an international effort to address individuals who were
forced to leave their homelands during and after the Second
World War. Fedorenko, supra, at 495. The DPA excludes
those who “voluntarily assisted the enemy forces since the
outbreak of the second world war,” 62 Stat. 3052, as well as
all who “assisted the enemy in persecuting civil populations
of countries,” id., at 3051. The latter exclusion clause makes
no reference to culpability. The exclusion of even those in
volved in nonculpable, involuntary assistance in Nazi perse
cution, as an expert testified in Fedorenko, may be “ ‘[b]e
cause the crime against humanity that is involved in the
concentration camp puts it into a different category.’ ” 449
U. S., at 511, n. 32.
The persecutor bar in this case, by contrast, was enacted
as part of the Refugee Act of 1980. Unlike the DPA, which
was enacted to address not just the postwar refugee problem
but also the Holocaust and its horror, the Refugee Act was
designed to provide a general rule for the ongoing treatment
of all refugees and displaced persons. As this Court has
twice recognized, “ ‘one of Congress’ primary purposes’ in
passing the Refugee Act was to implement the principles
agreed to in the 1967 United Nations Protocol Relating to
the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224,
T. I. A. S. 6577 (1968),” as well as the “United Nations Con
vention Relating to the Status of Refugees, 189 U. N. T. S.
150 (July 28, 1951), reprinted in 19 U. S. T. 6259.” Aguirre-
Aguirre, 526 U. S., at 427 (quoting Cardoza-Fonseca, 480
U. S., at 436–437).
These authorities illustrate why Fedorenko, which ad
dressed a different statute enacted for a different purpose,
does not control the BIA’s interpretation of this persecutor
bar. Whatever weight or relevance these various authori
ties may have in interpreting the statute should be consid
ered by the agency in the first instance, and by any subse
quent reviewing court, after our remand.

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C
The Government argues that “if there were any ambiguity
in the text, the Board’s determination that the bar contains
no such exception is reasonable and thus controlling.” Brief
for Respondent 11. Whether such an interpretation would
be reasonable, and thus owed Chevron deference, is a legiti
mate question; but it is not now before us. The BIA deemed
its interpretation to be mandated by Fedorenko, and that
error prevented it from a full consideration of the statutory
question here presented.
In denying relief in this case the BIA recited a rule that
has developed in its own case law in reliance on Fedorenko:
“[A]n alien’s motivation and intent are irrelevant to the issue
of whether he ‘assisted’ in persecution . . . . [I]t is the objec
tive effect of an alien’s actions which is controlling.” App.
to Pet. for Cert. 6a. The rule is based on three earlier de
cisions: Matter of Laipenieks, 18 I. & N. Dec. 433 (1983);
Matter of Fedorenko, 19 I. & N. Dec. 57; and Matter of
Rodriguez-Majano, 19 I. & N. Dec. 811 (1988).
In Matter of Laipenieks, the BIA applied the Court’s Fed
orenko analysis of the DPA to a different postwar statute,
which provided for the deportation of anyone associated with
the Nazis who “ordered, incited, assisted, or otherwise par
ticipated” in persecution based on a protected ground. 8
U. S. C. § 1182(a)(3)(E)(i). Finding no agency or judicial de
cision on point, the BIA relied on Fedorenko. It recog
nized that the unique structure of the Fedorenko statute
was not present in § 1182(a)(3)(E)(i), but the BIA never
theless adopted wholesale the Fedorenko rule: “[A]s in
Fedorenko, . . . the plain language of [§ 1182(a)(3)(E)(i)] man
dates a literal interpretation, and the omission of an in
tent element compels the conclusion that [§ 1182(a)(3)(E)(i)]
makes all those who assisted in the specific persecution de
portable.” 18 I. & N. Dec., at 464 (emphasis deleted). In
other words, “particular motivations or intent . . . is not a
relevant factor.” Ibid.

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The second decision, Matter of Fedorenko, also dealt with
§ 1182(a)(3)(E)(i), and it involved the same alien whose citi
zenship was revoked by this Court’s Fedorenko decision.
This time the agency sought to deport him. Fedorenko re
sponded by requesting suspension of deportation. He ar
gued that, unlike the DPA’s bar on any assistance—voluntary
or involuntary—in persecution, see Fedorenko, supra, at 512,
the text and structure of § 1182(a)(3)(E)(i) required deporta
tion only of those who voluntarily assisted in persecuting
others. The BIA rejected that distinction, noting that it
was foreclosed by Matter of Laipenieks: “It may be, as
[Fedorenko] argues, that his service at Treblinka was
involuntary. . . . We need not resolve the issue, however, be
cause as a matter of law [Fedorenko’s] motivations for serv
ing as a guard at Treblinka are immaterial to the question
of his deportability under” § 1182(a)(3)(E)(i). 19 I. & N.
Dec., at 69–70.
Later, the BIA applied this Court’s Fedorenko rule to the
persecutor bar that is at issue in the present case. In Mat
ter of Rodriguez-Majano, the BIA granted relief because the
alien’s coerced conduct as a guerrilla was not persecution
based on a protected ground. 19 I. & N. Dec., at 815–816.
Nevertheless, in reaching its conclusion the BIA incorpo
rated without additional analysis the Fedorenko rule as ap
plied in Matter of Laipenieks and reiterated in Matter of
Fedorenko. 19 I. & N. Dec., at 814–815. The BIA reaf
firmed that “[t]he participation or assistance of an alien in
persecution need not be of his own volition to bar him from
relief.” Id., at 814 (citing Fedorenko, 449 U. S. 490).
Our reading of these decisions confirms that the BIA has
not exercised its interpretive authority but, instead, has de
termined that Fedorenko controls. This mistaken assump
tion stems from a failure to recognize the inapplicability of
the principle of statutory construction invoked in Fedorenko,
as well as a failure to appreciate the differences in statutory
purpose. The BIA is not bound to apply the Fedorenko rule

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that motive and intent are irrelevant to the persecutor bar
at issue in this case. Whether the statute permits such an
interpretation based on a different course of reasoning must
be determined in the first instance by the agency.
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 re
mand to the agency for additional investigation or explana
tion.” ’ ” 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 “ambigu
ities 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 fur
ther 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 Sil
berman, 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 consti
tute 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 qual
ify. 547 U. S., at 184–185. The Solicitor General sought re

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524 NEGUSIE v. HOLDER
Opinion of the Court
view 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 Cir
cuit’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. Be
cause of the important differences between the statute be
fore us and the one at issue in Fedorenko, we find it appro
priate 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 com
prehensive 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 practi
cal, or impractical, the standard would be in terms of its
application to specific cases. These matters may have rele
vance 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 mat
ter; it can evaluate the evidence; it can make an initial deter
mination; and, in doing so, it can, through informed discus
sion 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 Immi
gration Judge to conduct additional factfinding based on the
new standard. Those determinations are for the agency to
make in the first instance.

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Scalia, J., concurring
* * *
We reverse the judgment of the Court of Appeals and re
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, with whom Justice Alito joins,
concurring.
I agree with the Court that “the statute has an ambigu
ity,” ante, at 517, with respect to whether an alien who was
coerced to assist in persecution is barred from obtaining asy
lum 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 523.
I would not agree to remand if I did not think that the
agency has the option of adhering to its decision. The ma
jority appears to leave that question undecided, ante, at 518
(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 534–535 (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 construc
tions of an ambiguous statute. The statute does not man
date 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).

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Scalia, J., concurring
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 pro
found questions of moral philosophy and individual responsi
bility. (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 sup
port 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, 84 Eng. Rep. 1060 (K. B. 1660);
Prosecutor v. Erdemovic´, [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 . . . ‘univer
sal 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 ac
corded 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

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Scalia, J., concurring
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 safe
guards 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 perse
cutors—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 Struc
ture of Immigration Law, 59 Stan. L. Rev. 809 (2007). Immi
gration judges already face the overwhelming task of at
tempting 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 un-coerced 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 co
erced persecutors—who might anyway be entitled to protec

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Opinion of Stevens, J.
tion 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 persecu
tion, see Castan˜ eda-Castillo v. Gonzales, 488 F. 3d 17, 20
(CA1 2007) (en banc), there is no reason why the agency can
not 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 Con
gress has given discretion to choose among permissible inter
pretations 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.
Justice Stevens, with whom Justice Breyer joins,
concurring in part and dissenting in part.
The narrow question of statutory construction presented
by this case is whether the so-called “persecutor bar,” 8
U. S. C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B), disqual
ifies from asylum or withholding of removal an alien whose
*The rationale for the duress defense, however, is conventionally “not
that the defendant . . . somehow loses his mental capacity to commit the
crime in question,” but rather that “even though he has done the act the
crime requires and has the mental state which the crime requires, his
conduct . . . is excused.” 2 W. LaFave, Substantive Criminal Law § 9.7(a),
p. 73 (2d ed. 2003).

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conduct was coerced or otherwise the product of duress. If
the answer to that threshold question is “no,” courts should
defer to the Attorney General’s evaluation of particular cir
cumstances that may or may not establish duress or coercion
in individual cases. But the threshold question the Court
addresses today is a “pure question of statutory construction
for the courts to decide.” INS v. Cardoza-Fonseca, 480 U. S.
421, 446 (1987). For that reason, while I agree with the
Court’s cogent explanation of why its misguided decision in
Fedorenko v. United States, 449 U. S. 490 (1981), does not
govern our interpretation of the persecutor bar, I would pro
vide a definite answer to the question presented and then
remand for further proceedings.
I
Judicial deference to agencies’ views on statutes they ad
minister was not born in Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984), nor
did the “singularly judicial role of marking the boundaries of
agency choice,” Young v. Community Nutrition Institute,
476 U. S. 974, 988 (1986) (Stevens, J., dissenting), die with
that case. In the years before Chevron, this Court recog
nized that statutory interpretation is a multifaceted enter
prise, ranging from a precise construction of statutory lan
guage to a determination of what policy best effectuates
statutory objectives. We accordingly acknowledged that a
complete interpretation of a statutory provision might de
mand both judicial construction and administrative explica
tion. E. g., NLRB v. Hearst Publications, Inc., 322 U. S. 111
(1944) (construing the term “employee” in the National
Labor Relations Act but deferring to the National Labor Re
lations Board’s finding that newsboys were employees); see
Nathanson, Administrative Discretion in the Interpretation
of Statutes, 3 Vand. L. Rev. 470 (1950).
Chevron adhered to this approach. There, we recognized
that the Clean Air Act did not define “stationary sources,”

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42 U. S. C. § 7502(b)(6) (1982 ed.), but rather implicitly dele
gated to the Environmental Protection Agency (EPA) the
policy question whether States could treat entire plants or
only their discrete pollution-emitting devices as sources of
pollution for purposes of the Act’s permit program. Con
gress left a gap for the agency to fill, and the agency brought
its expertise, political acuity, and information-gathering abil
ities to bear in doing so. See Chevron, 467 U. S., at 865–
866.1 In keeping with precedent, see id., at 843–845, and
nn. 9, 11–14, our opinion reaffirmed both that “[t]he judiciary
is the final authority on issues of statutory construction,”
id., at 843, n. 9, and that courts should defer to an agency’s
reasonable formulation of policy in response to an explicit or
implicit congressional delegation of authority. The Chevron
framework thus accounts for the different institutional com
petencies of agencies and courts: Courts are expert at statu
tory construction, while agencies are expert at statutory im
plementation. That the distinction can be subtle does not
lessen its importance.
In the 25 years since Chevron was decided, this Court
has continued to recognize that courts and agencies play
complementary roles in the project of statutory interpreta
tion. We have repeatedly held that “ambiguities in statutes
within an agency’s jurisdiction to administer are delegations
of authority to the agency to fill the statutory gap in rea
sonable fashion.” National Cable & Telecommunications
Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005).
But even when confronted with a statute that involves a de
1 Notably, the EPA cast its activity not as statutory construction but as
public administration; its rulemaking sought to achieve policy goals, such
as reducing regulatory complexity and promoting plant modernization.
See 46 Fed. Reg. 50766 (1981). To be sure, the EPA argued that its regu
lation defining “stationary source” as an entire plant was permissible
under the Clean Air Act, but the agency treated its rulemaking as a mat
ter of fashioning sound policy, not of discerning the meaning of “stationary
source” in the statute.

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gree of ambiguity—as most statutes do—we have not abdi
cated our judicial role. The fact that Congress has left a
gap for the agency to fill means that courts should defer
to the agency’s reasonable gap-filling decisions, not that
courts should cease to mark the bounds of delegated agency
choice.2
In cases involving agency adjudication, we have sometimes
described the court’s role as deciding pure questions of statu
tory construction and the agency’s role as applying law to
fact. See, e. g., Cardoza-Fonseca, 480 U. S. 421; NLRB v.
Food & Commercial Workers, 484 U. S. 112 (1987); see also
Republic of Austria v. Altmann, 541 U. S. 677, 701–702
(2004). While this phrasing is peculiar to the adjudicatory
context, the principle applies to Chevron’s domain more
broadly. In the context of agency rulemaking, for instance,
we might distinguish between pure questions of statutory
interpretation and policymaking, or between central legal is
sues and interstitial questions. See Barnhart v. Walton,
535 U. S. 212, 222 (2002).3 The label is immaterial. What
matters is the principle: Certain aspects of statutory inter
pretation remain within the purview of the courts, even
when the statute is not entirely clear, while others are prop
erly understood as delegated by Congress to an expert
and accountable administrative body. Statutory language
may thus admit of both judicial construction and agency
exposition.
2 Cf. United States v. Mead Corp., 533 U. S. 218, 236–238 (2001); Barn
hart v. Walton, 535 U. S. 212, 222 (2002) (noting that Mead “indicated that
whether a court should give [Chevron] deference depends in significant
part upon the interpretive method used and the nature of the question
at issue”).
3 The Administrative Procedure Act draws a similar distinction in pro
viding that courts “shall decide all relevant questions of law [and] inter
pret constitutional and statutory provisions” but shall review “agency
action, findings, and conclusions” under the arbitrary and capricious/
abuse-of-discretion standard. 5 U. S. C. § 706.

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II
Two of this Court’s cases construing the Immigration and
Nationality Act (INA), 66 Stat. 166, 8 U. S. C. § 1101 et seq.,
illustrate the proper division of responsibility between
courts and agencies and highlight when Chevron deference
is appropriate and when it is not. In Cardoza-Fonseca, the
question was whether the standard of INA § 243(h), 8 U. S. C.
§ 1253(h) (1982 ed.), which requires an alien to show that she
is more likely than not to be subject to persecution if she
is deported, also governs applications for asylum under
§ 208(a), 8 U. S. C. § 1158(a) (1982 ed.), which authorizes the
Attorney General to grant asylum to an alien who has a
well-founded fear of persecution in her home country. After
considering the INA’s language, its legislative history, and
the United Nations Protocol that Congress had implemented,
the Court determined that the two standards are not the
same.
In so holding, we decisively rejected the Government’s
contention, echoed by Justice Scalia’s concurrence in the
judgment, that the Board of Immigration Appeals’ (BIA) in
terpretation of the statute merited deference under our
then-recent decision in Chevron. “The question whether
Congress intended the two standards to be identical is a pure
question of statutory construction for the courts to decide,”
we stated. 480 U. S., at 446. We therefore did not defer to
the BIA’s interpretation of the two standards as equivalent
but instead employed traditional tools of statutory construc
tion and “concluded that Congress did not intend the two
standards to be identical.” Ibid.4
4 Justice Scalia objected in particular to the majority’s holding that
pure questions of statutory construction are for the courts, not agencies,
to decide; he insisted this was unfaithful to Chevron, “since in Chevron
the Court deferred to the Environmental Protection Agency’s abstract
interpretation of the phrase ‘stationary source.’ ” 480 U. S., at 455 (opin
ion concurring in judgment). The majority rejected Justice Scalia’s
argument, recognizing that Chevron involved an agency’s complex policy

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Importantly, we recognized that Chevron deference need
not be an all-or-nothing venture. Even after the question
of the standards’ equivalency was resolved, there remained
the question of their application. We explained: “The nar
row legal question whether the two standards are the same
is, of course, quite different from the question of interpreta
tion that arises in each case in which the agency is required
to apply either or both standards to a particular set of facts.”
480 U. S., at 448. And we noted that applying the INA was
a task particularly suited to the agency’s unique competen
cies: “There is obviously some ambiguity in a term like
‘well-founded fear’ which can only be given concrete meaning
through a process of case-by-case adjudication. In that
process of filling ‘ “any gap left, implicitly or explicitly by
Congress,” ’ the courts must respect the interpretation of the
agency to which Congress has delegated the responsibility
for administering the statutory program.” Ibid. (quoting
Chevron, 467 U. S., at 843, in turn quoting Morton v. Ruiz,
415 U. S. 199, 231 (1974)).
In INS v. Aguirre-Aguirre, 526 U. S. 415 (1999), the Court
encountered just the type of agency decision Cardoza-
Fonseca indicated would warrant Chevron deference. The
BIA had denied withholding of deportation because it found
that the respondent had “committed a serious nonpolit
ical crime” before he entered the United States, 8 U. S. C.
§ 1253(h)(2)(C) (1994 ed.). The Court of Appeals reversed
the agency’s decision and required it to supplement its bal
ancing test with specific additional factors (such as whether
the respondent’s acts were grossly out of proportion to their
objective and whether the acts were politically necessary
and successful).
We reversed the Court of Appeals, concluding that Chev
ron deference should be accorded to the BIA “as it gives
judgment about how to fill a statutory gap, not a pure question of statu
tory construction. See 480 U. S., at 445–448, and n. 29 (quoting exten
sively from Chevron).

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ambiguous statutory terms ‘concrete meaning through a
process of case-by-case adjudication.’ ” 526 U. S., at 425
(quoting Cardoza-Fonseca, 480 U. S., at 448). The BIA’s for
mulation of a test to apply the statutory standard in individ
ual cases and its application of that test in respondent’s case
were precisely the sort of agency actions that merited judi
cial deference.
III
The threshold question the Court addresses today is the
kind of “pure question of statutory construction for the
courts to decide” that we answered in Cardoza-Fonseca, id.,
at 446, rather than a fact-intensive question of the kind we
addressed in Aguirre-Aguirre. Just as we decided the nar
row legal question presented in Cardoza-Fonseca but did not
“attempt to set forth a detailed description of how the ‘well
founded fear’ test should be applied,” 480 U. S., at 448,
I would decide the narrow legal question now before us and
remand for the agency to determine how the persecutor bar
applies in individual cases.5
For reasons similar to those set forth in my dissent in Fed
orenko, I think it plain that the persecutor bar does not dis
5 The majority suggests that this approach is inconsistent with the “ ‘or
dinary “remand” rule’ ” articulated in Gonzales v. Thomas, 547 U. S. 183
(2006) (per curiam), and INS v. Orlando Ventura, 537 U. S. 12 (2002) (per
curiam). Ante, at 523–524. But those cases involved exactly the sort of
application of law to fact that is within the agency’s purview. In Thomas,
the Court of Appeals decided that the family at issue “fell within the scope
of the statutory term ‘particular social group.’ ” 547 U. S., at 185. We
noted that the BIA had not considered this question, which “require[d]
determining the facts and deciding whether the facts as found f[e]ll within
a statutory term.” Id., at 186. Accordingly, we held that the court
should have remanded to the agency. Similarly, in Ventura, the Court of
Appeals addressed an issue that the BIA had not reached and concluded
that conditions in Guatemala had so improved that no realistic threat of
persecution currently existed. The Government argued that the court
had not respected “the BIA’s role as fact-finder,” 537 U. S., at 16, and we
agreed, reversing the court’s judgment insofar as it had not remanded to
the agency.

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qualify from asylum or withholding of removal an alien
whose conduct was coerced or otherwise the product of du
ress. Although I agree in full with the Court’s conclusion
that the majority opinion in Fedorenko does not govern our
interpretation of the persecutor bar, the differences the
Court highlights between the Displaced Persons Act of 1948
(DPA), 62 Stat. 1009, and the Refugee Act of 1980, 94 Stat.
102, only strengthen my conclusion that voluntary assistance
in persecution is required and that duress and coercion viti
ate voluntariness.
The Fedorenko Court’s construction of the DPA threat
ened to exclude from the United States concentration camp
prisoners who were forced to assist the Nazis in the persecu
tion of other prisoners. In my view, this construction was
insupportable—the DPA’s exclusion of persons who “assisted
the enemy in persecuting civil populations,” Constitution of
the International Refugee Organization, Annex I, Pt. II,
§ 2(a), 62 Stat. 3051, did not extend to concentration camp
prisoners who did so involuntarily. These prisoners were
victims, not persecutors.
Without an exception for involuntary action, the Refugee
Act’s bar would similarly treat entire classes of victims as
persecutors. The Act does not support such a reading.
The language of the persecutor bar is most naturally read
to denote culpable conduct, and this reading is powerfully
supported by the statutory context and legislative history.
As this Court has previously recognized—and as the ma
jority acknowledges again today—Congress passed the Ref
ugee Act to implement the United Nations Convention Re
lating to the Status of Refugees, July 28, 1951, 189 U. N. T. S.
150 (hereinafter Convention), reprinted in 19 U. S. T. 6259,
and the 1967 United Nations Protocol Relating to the Status
of Refugees, Jan. 31, 1967, [1968] 19 U. S. T. 6223, T. I. A. S.
No. 6577 (hereinafter Protocol). These treaties place a man
datory obligation on signatory states not to “expel or return
(‘refouler’) a refugee in any manner whatsoever to . . . terri

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tories where his life or freedom would be threatened on ac
count of his race, religion, nationality, membership of a par
ticular social group or political opinion.” Convention, Art.
33(1), 19 U. S. T., at 6276; Protocol, Art. I, 19 U. S. T., at
6225. The Refugee Act’s withholding of removal provision
specifically tracks this language. 8 U. S. C. § 1231(b)(3)(A);
see H. R. Rep. No. 96–608, p. 18 (1979) (withholding of re
moval provision “clearly reflects our legal obligations under
international agreements,” specifically Convention Article
33).6
The Convention excludes from the nonrefoulement obliga
tion of Article 33 persons who have “committed a crime
against peace, a war crime, or a crime against humanity.”
Convention, Art. 1(F)(a), 19 U. S. T., at 6263. It is this ex
ception that the persecutor bar reflects. See, e. g., H. R.
Rep. No. 96–608, at 18 (persecutor bar encompasses “ex
ceptions . . . provided in the Convention relating to aliens
who have themselves participated in persecution”); H. R.
Conf. Rep. No. 96–781, p. 20 (1980). The language of the
Convention’s exception is critical: We do not normally convict
individuals of crimes when their actions are coerced or oth
erwise involuntary. Indeed, the United Nations Handbook,
6 Asylum and withholding of removal address concerns different from
those addressed by the Convention Against Torture and Other Cruel, In
human, or Degrading Treatment or Punishment (CAT) and its implement
ing regulations. CAT, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465
U. N. T. S. 85; 8 CFR §§ 1208.16–1208.18 (2008). The CAT prohibits a
state party from returning any person to a country where there is sub
stantial reason to believe he might be tortured, but its definition of torture
covers a narrower class of harms, imposed by a narrower class of actors,
than the asylum and withholding of removal provisions. Most impor
tantly, the CAT limits its definition of torture to acts “inflicted by or at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity,” Pt. I, Art. 1, ¶ 1, p. 19, while
asylum and withholding of removal are available to victims of harm in
flicted by private actors, without regard to state involvement, see, e. g., In
re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996); In re H—, 21 I. & N. Dec.
337, 343–344 (BIA 1996).

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to which the Court has looked for guidance in the past, states
that all relevant factors, including “mitigating circum
stances,” must be considered in determining whether an
alien’s acts are of a “criminal nature” as contemplated by
Article 1(F). Office of the United Nations High Commis
sioner for Refugees, Handbook on Procedures and Criteria
for Determining Refugee Status ¶¶ 157, 162 (reedited Jan.
1992). Other states parties to the Convention and Protocol
likewise read the Convention’s exception as limited to culpa
ble conduct.7 When we interpret treaties, we consider the
interpretations of the courts of other nations, and we should
do the same when Congress asks us to interpret a statute in
light of a treaty’s language. See Zicherman v. Korean Air
Lines Co., 516 U. S. 217, 226–228 (1996). Congress’ effort to
conform United States law to the standard set forth in the
U. N. Convention and Protocol shows that it intended the
persecutor bar to apply only to culpable, voluntary acts—and
it underscores that Congress did not delegate the question
presented by this case to the agency.
While I would hold that the persecutor bar does not auto
matically disqualify from asylum or withholding of removal
an alien who acted involuntarily,8 I would leave for the Attor
7 See, e. g., Canada v. Asghedom, [2001] F. C. T. 972, ¶ 28 (Can. Fed.
Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870,
¶¶ 108–110 (U. K. Immigr. App. Trib.); SRYYY v. Minister for Immigra
tion & Multicultural & Indigenous Affairs, [2005] 147 F. C. R. 1, ¶¶ 126–
128 (Austl. Fed. Ct.); Refugee Appeal No. 2142/94, pp. 12–14 (N. Z. Refugee
Status App. Auth., Mar. 20, 1997). Notions of culpability have deep roots
in asylum law. See generally 2 H. Grotius, De Jure Belli ac Pacis Libri
Tres, ch. XXI, § V(1), p. 530 (J. Scott ed., F. Kelsey et al. transl., 1925)
(“[P]laces of asylum were available [in ancient times] for those from whose
hands a chance missile had slain a man” and for those with “innocent”
minds).
8 Other considerations that are not presented in this case, such as an
alien’s lack of knowledge that he was involved in a persecutory act, could
likewise indicate that he did not act with the requisite culpability. See,
e. g., Castan˜ eda-Castillo v. Gonzales, 488 F. 3d 17, 20–22 (CA1 2007) (en
banc); Hernandez v. Reno, 258 F. 3d 806, 814 (CA8 2001).

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ney General—and, through his own delegation, the BIA—the
question how the voluntariness standard should be applied.
The agency would retain the ability, for instance, to define
duress and coercion; to determine whether or not a balancing
test should be employed; and, of course, to decide whether
any individual asylum-seeker’s acts were covered by the per
secutor bar. Those are the sorts of questions suited to the
agency’s unique competencies in administering the INA.
The threshold question before the Court is not.
IV
Because I remain convinced that the narrower interpreta
tion of Chevron endorsed by the Court in Cardoza-Fonseca
was more faithful to the rationale of that case than the
broader view the Court adopts today, I am unable to join its
opinion. I would answer the question of law that this case
presents with an unequivocal “no” and remand to the agency
for further proceedings.
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 so
cial group, or political opinion.” 8 U. S. C. §§ 1101(a)(42),
1158(b)(2)(A), 1231(b)(3)(B)(i). 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 volun
tarily 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 pre
sented here. See ante, at 518–523; see also ante, at 525

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Thomas, J., dissenting
(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 par
ticipated 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 517, 523–524; see also ante, at 525
(Scalia, J., concurring). I disagree with both of these con
clusions. 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 Immigra
tion 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. Accord
ing 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 prison
ers 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 typ
ically 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 515 (majority
opinion).
Petitioner testified that, as a guard, he prevented the pris
oners from showering and forbade them from leaving their
rooms for fresh air. This form of punishment was particu
larly 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 pre

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vented prisoner escapes, for which the punishment was
forced sun exposure. And, although petitioner never used
“electricity to torture” prisoners, he was aware that his su
pervisor 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 eve
nings 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 515 (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 re
turn of any person to a country in which there are substan
tial 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 Sub
jection 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

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541 Cite as: 555 U. S. 511 (2009)
Thomas, J., dissenting
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 re
turn 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 polit
ical opinion.” 8 U. S. C. §§ 1101(a)(42)(A), 1158(b)(1). The
INA also requires the Executive to withhold removal of
aliens to a country in which there is a “clear probability”
that their “life or freedom would be threatened” because of
their “race, religion, nationality, membership in a particular
social group, or political opinion.” § 1231(b)(3)(A). How
ever, 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 per
son 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 sub
ject to the INA persecutor bar who would more likely than
not be tortured if removed to their home country.1 8 CFR
1 “Deferral of removal” was created to accommodate Congress’ direction
to exclude those who fall within the INA persecutor bar “[t]o the maxi
mum extent consistent with the obligations of the United States under the
[CAT]” not to return an alien to a country in which he or she will be
tortured. CAT Policy (c), at 263. To accomplish that goal, deferral of
removal provides “a less permanent form of protection than withholding
of removal and one that is more easily and quickly terminated if it becomes
possible to remove the alien consistent with Article 3” of the CAT, 64 Fed.
Reg. 8480 (1999), while also “ensur[ing] that [such aliens] are not returned
to a country where they would be tortured,” id., at 8481.

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§§ 1208.16(c)(4), (d)(2), 1208.17(a) (2008); see also CAT Policy
(b), at 263 (requiring federal agencies to “prescribe regula
tions to implement the obligations of the United States under
Article 3 of the [CAT], subject to any reservations, under
standings, 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 objec
tively qualified as assistance or participation in the per
secution of others based on religion. See ante, at 515–516
(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.” Ante, at 516 (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 de
ferral 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. 20a,
19a. The Court of Appeals affirmed. See Negusie v. Gon
zales, 231 Fed. Appx. 325, 326 (CA5 2007) (per curiam).
II
As with all statutory interpretation questions, construc
tion of the INA’s persecutor bar must begin with the plain
language of the statute. See Jimenez v. Quarterman, ante,
at 118 (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 in
tent of Congress.’ ” National Assn. of Home Builders v.

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Thomas, J., dissenting
Defenders of Wildlife, 551 U. S. 644, 665 (2007) (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 lan
guage at issue.” K mart Corp. v. Cartier, Inc., 486 U. S.
281, 291 (1988). As the majority acknowledges, see ante,
at 518, the text of the INA’s persecutor bar neither includes
the term “voluntary” nor contains an exception for invol
untary, coerced conduct. The statute instead applies to
any alien who “ordered, incited, assisted, or otherwise par
ticipated in the persecution of any person” on account of a
protected ground. 8 U. S. C. §§ 1101(a)(42), 1158(b)(2)(A)(i),
1231(b)(3)(B)(i).
The statute’s key terms also do not imply any voluntari
ness requirement for persecution. Under the ordinary
meaning of the term “persecution” at the time of the stat
ute’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 Diction
ary 877 (1991) (hereinafter Webster’s Ninth) (defining “per
secution” 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 “per
secute”—meaning “harass in a manner designed to injure,
grieve, or afflict”—without having designed the act or in
tended 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 voluntari
ness 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

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also Black’s Law Dictionary 111 (5th ed. 1979) (hereinafter
Black’s) (defining “assist” as “[t]o help; aid; succor; lend coun
tenance 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; experi
ence in common with others; to have or enjoy a part or share
in common with others”). Accordingly, this Court has con
cluded that the ordinary meanings of “assist” and “partici
pate” do not “connote voluntariness.” Pennsylvania Dept.
of Corrections v. Yeskey, 524 U. S. 206, 211 (1998) (partici
pate); 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 assist
ance 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 Pro
duction 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 specifi
cally require voluntary conduct and explicitly exclude invol
untary conduct in other provisions of the INA. See infra,
at 552–553. 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

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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 ab
sence of a voluntariness requirement in the INA persecutor
bar is no exception.
Second, federal immigration law provides calibrated reme
dies, 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 persecu
tion may receive both asylum and the withholding of re
moval. §§ 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 pro
vides 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, solu
tion to a problem that has already been specifically ad
dressed elsewhere in the federal immigration regime (regu
lations implementing the CAT). Varity Corp. v. Howe, 516
U. S. 489, 519 (1996) (Thomas, J., dissenting); see also Trans
america 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 writ

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ing 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 re
quirement 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. Massachu-
setts 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 Stat
utory Construction § 49.9, pp. 127–133 (7th ed. 2008). Here,
the statutory and decisional backdrop against which Con
gress enacted the INA’s persecutor bar counsels against
grafting a voluntariness requirement onto the statute.
When Congress enacted the INA’s persecutor bar, it essen
tially retained the language used in similar predecessor stat
utes. Under the 1948 DPA persecutor bar, entry was denied
2 It also is important to acknowledge that the object of the INA is to
codify Congress’ policy decisions “ ‘pertaining to the entry of aliens and
their right to remain’ ” in the United States—decisions that are “ ‘en
trusted exclusively to Congress.’ ” Kleindienst v. Mandel, 408 U. S. 753,
766, 767 (1972) (quoting Galvan v. Press, 347 U. S. 522, 531–532 (1954)).
In fact, “over no conceivable subject is the legislative power of Congress
more complete than it is over” the decision of Congress to admit or to
exclude aliens. Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 339
(1909). Courts therefore must enforce the immigration policy decision re
flected in a statute’s plain terms, even if Congress has chosen “to forbid
the entrance of foreigners within its dominions” altogether, Fong Yue Ting
v. United States, 149 U. S. 698, 705 (1893). Likewise, here, where Con
gress has made a judgment about which persons to admit and exclude from
the country, it is not for this Court to question the wisdom of that choice.

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to all who “ ‘assisted the enemy in persecuting civil[ians].’ ”
Fedorenko, supra, 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 per
secution of any person because of race, religion, or national
origin.” § 13, 64 Stat. 227. In the years that followed, Con
gress 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 be
cause of race, religion, or political opinion”); 8 U. S. C.
§§ 1182(a)(3)(E), 1227(a)(4)(D) (authorizing the exclusion of
anyone who had been associated with Nazi forces and 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, nation
ality, 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 Responsibil
ity Act of 1996 (IIRIRA), §§ 305(a)(3), 601(a)(1), 604(a), 110
Stat. 3009–602, 3009–689, 3009–691.
Congress’ uninterrupted use of this broad statutory lan
guage, which parallels the persecutor bars dating back to
1948, was not accidental. By the time of the 1996 reenact
ment, this Court had specifically interpreted the plain lan
guage of the predecessor bars to apply regardless of the
voluntariness of a persecutor’s conduct. See Fedorenko,

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449 U. S., 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 persecut
ing civil[ians],” contained no “ ‘involuntary assistance’ excep
tion.” 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 perse
cution” of any person, §§ 1158(b)(2)(A)(i), 1231(b)(3)(B), is sig
nificant 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 un
coerced to fall within the statute’s reach. It instead “man
dates precisely” what it says: “[A]n individual’s service as a
[prison] camp armed guard—whether voluntary or involun
tary—ma[kes] him ineligible for” asylum or withholding of
removal if the guard’s service involved assistance or partici
pation 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 be
liefs. See ante, at 515 (majority opinion). It also is undis

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Thomas, J., dissenting
puted that petitioner carried out the persecution by prevent
ing prisoners from escaping and by standing guard while at
least one prisoner died from sun exposure. Ibid. Peti
tioner, therefore, “assisted, or otherwise participated,” in
persecution and thus is statutorily disqualified from receiv
ing asylum or withholding of removal under the INA.3
III
The majority nevertheless concludes the statute’s “si
lence,” ante, at 518, 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).
3 Justice Stevens also finds the language of the INA’s persecutor bar
“plain,” but concludes that it must incorporate a culpability requirement
because the statute applies to those whose “acts are of a ‘criminal na
ture.’ ” See ante, at 534, 537 (opinion concurring in part and dissenting
in part). I disagree. The decision to admit an alien is a matter of legisla
tive grace, see n. 2, supra, for which judicial review has been “consistently
classified” as civil in nature, Harisiades v. Shaughnessy, 342 U. S. 580, 594
(1952); see also Zadvydas v. Davis, 533 U. S. 678, 720 (2001) (Kennedy, J.,
dissenting) (explaining that “ ‘an alien seeking initial admission to the
United States requests a privilege and has no constitutional rights regard
ing his application, for the power to admit or exclude aliens is a sovereign
prerogative’ ” (quoting Landon v. Plasencia, 459 U. S. 21, 32 (1982))).
There is no warrant to read criminal-law requirements into a statute that
is “nonpunitive in purpose and effect.” Zadvydas, supra, at 690. Fur
ther, the conclusory pronouncement in the Office of the United Nations
High Commissioner for Refugees’ Handbook on Procedures and Criteria
for Determining Refugee Status ¶ 162 (reedited Jan. 1992), that “it has to
be assumed, although this is not specifically stated, that the acts covered
by the present clause must also be of a criminal nature,” is insufficient to
require criminal proof to deny withholding of removal, contra, ante, at
536–537 (opinion of Stevens, J.). The United Nations handbook “is not
binding on the Attorney General, the BIA, or United States courts.” INS
v. Aguirre-Aguirre, 526 U. S. 415, 427 (1999).

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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 519. 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 stat
ute’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
529–531 (opinion of Stevens, J.). And the Court should not,
“in the name of deference, abdicate its responsibility to in
terpret 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 517–518. 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 518. 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 be
fore the Court instead is whether Congress has provided an
unambiguous answer in the plain language that it chose to

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use. Here, for the reasons just explained, the traditional
tools of statutory interpretation show with “utmost clarity,”
St. Cyr, supra, at 329 (Scalia, J., dissenting), that the stat
ute applies regardless of the voluntariness of the alien who
participates or assists in persecution.4
The majority also finds ambiguity based on differences be
tween the INA and the DPA statutory bar considered in Fed
orenko. In particular, the majority points to the Fedorenko
Court’s reliance on a second part of the DPA persecutor bar,
which applied to those who “ ‘voluntarily assisted the enemy
forces . . . in their operations against the United Nations.’ ”
449 U. S., at 495, and n. 4 (quoting 62 Stat. 3052; emphasis
added). The Court noted that “[u]nder traditional principles
of statutory construction, the deliberate omission of the word
‘voluntary’ from § 2(a),” which addressed the assistance of
persecution—but not from § 2(b)—“compel[led] the conclu
sion that the statute made all those who assisted in the per
secution of civilians ineligible for visas.” 449 U. S., at 512.
According to the majority, because the INA persecutor bar,
unlike the DPA bar, does not include a provision limited by
the word “voluntarily” adjacent to the provision that is not
so limited, the absence of the adverb here cannot carry the
significance given it in Fedorenko. See ante, at 519.
The majority’s reasoning is flawed. The mere fact that
the INA’s persecutor bar is not accompanied by a neighbor
4 Because this Court should not delegate the interpretation of the perse
cutor bar’s plain meaning to a federal agency, see Board of Governors,
FRS v. Dimension Financial Corp., 474 U. S. 361, 368 (1986), it is largely
irrelevant whether the BIA properly relied on Fedorenko v. United States,
449 U. S. 490 (1981), in interpreting the statute, see ante, at 521–523 (ma
jority opinion); ante, at 525 (Scalia, J., concurring). In any event, the
BIA’s construction of the INA’s persecutor bar correctly reflected the text
of the provision. There is no reason to remand the question to the agency
when only one construction of the statute is permissible and the agency’s
original decision adopted that proper construction. See National
Cable & Telecommunications Assn. v. Brand X Internet Services, 545
U. S. 967, 982–985 (2005).

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ing provision containing the word “voluntarily” does not ne
gate the significance of the term’s absence when other INA
provisions are explicitly limited to actions undertaken vol
untarily. As noted above, see supra, at 544–545, the INA
imposes a voluntariness requirement in a host of statutory
provisions, see, e. g., 8 U. S. C. § 1158(c)(2)(D) (terminating
asylum when alien has “voluntarily” availed himself of the
protection of his country); §§ 1182(a)(3)(D)(i)–(ii) (denying ad
mission and naturalization to those who have been members
of, or affiliated with, “the Communist or any other totalitar
ian party” unless that membership or affiliation was “invol
untary”); § 1182(d)(3)(B)(i) (2006 ed., Supp. I) (denying admis
sion to those who have “voluntarily and knowingly” engaged
in, endorsed, espoused, or persuaded others to endorse,
espouse, or support terrorist activity); § 1229c(a)(1) (allow
ing an alien to “voluntarily” depart the United States);
§§ 1424(a), (d) (precluding naturalization for members of cer
tain totalitarian parties, unless membership was “involun
tary”); § 1481(a) (providing for loss of nationality by “volun
tarily” performing certain specified acts with the intention
of relinquishing nationality).5
In the immigration and naturalization context, then, Con
gress is certainly capable of declaring its preference for a
voluntariness requirement. That Congress’ explicit refer
ences to voluntariness appear in other sections of this partic
ular statutory scheme, rather than in subsections of §§ 1158
or 1231, is immaterial. Cf. Russello, 464 U. S., at 23; Barn
5 Moreover, in the Refugee Act of 1980, which added the persecutor bar
to the INA, Congress separately codified its desire to “promote opportuni
ties for resettlement or voluntary repatriation.” § 101(a), 94 Stat. 102,
note following 8 U. S. C. § 1521. In 1996, when Congress reenacted the
statutory text, it retained the persecution bar’s broad language while
again restricting other sections to voluntary conduct. See IIRIRA, § 304,
110 Stat. 3009–587 (relating to “voluntary departure”); § 402, id., at 3009–
656 (relating to “voluntary” participation in pilot programs for confirming
employment eligibility); § 604, id., at 3009–692 (providing for termination
of asylum when alien “voluntarily” takes certain actions).

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hart, 534 U. S., at 452–454. And the fact that Congress, in
the course of making structural revisions to the statutory
regime, eliminated the specific dichotomy the Court noted in
Fedorenko does not undermine the critical point: The INA
expressly includes a voluntariness requirement in several
places but does not impose such a requirement in the perse
cution bar. Thus, the omission of the word “voluntarily”
from the persecutor bar in the INA is just as conclusive as
its omission from the persecutor bar in the DPA. With re
spect to both statutes, the deliberate omission “compels the
conclusion that the statute made all those who assisted in
the persecution of civilians ineligible for visas.” 449 U. S.,
at 512.
Finally, the majority concludes that the DPA bar is distin
guishable from the INA bar because the former was enacted
in the context of the “ ‘ “crime against humanity that [was]
involved in the concentration camp,” ’ ” which was so horrific
that it is in a category all its own. Ante, at 520 (quoting
Fedorenko, supra, at 511, n. 32). In that unique context,
the majority reasons, it made sense to exclude “even those
involved in nonculpable, involuntary assistance in Nazi per
secution.” Ante, at 520. But the majority cannot intend to
suggest that all acts of persecution during the Second World
War were inherently more depraved or reprehensible than
all acts of persecution that have occurred in the decades
since the INA’s enactment.
Certainly, no such conclusion is compelled by the statutory
text. Congress has steadfastly condemned all acts of perse
cution. See 22 U. S. C. §§ 6401(a)(5)–(7) (noting that “Con
gress has recognized and denounced acts of religious perse
cution,” which can be “severe and violent” and “particularly
widespread, systematic, and heinous under totalitarian gov
ernments and in countries with militant, politicized religious
majorities”); § 6401(b)(5) (announcing that it is the “policy of
the United States” to “stan[d] with the persecuted”); § 501,
78 Stat. 1015 (“The Congress condemns the persecution of

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any persons because of their religion”); Refugee Act of 1980,
§ 101(a), 94 Stat. 102, note following 8 U. S. C. §1521 (“The
Congress declares that it is the historic policy of the United
States to respond to the urgent needs of persons subject to
persecution in their homelands”). There is no reason to
deny the INA persecutor bar its full meaning based on a
speculative assumption that Congress, in 1980, could not
have meant to oppose persecution quite as intensely as it
did in the aftermath of World War II. Rather, the INA’s
persecutor bar naturally extends to all acts of persecution
and, therefore, requires the denial of asylum and withholding
of removal for “even those involved in nonculpable, involun
tary assistance in . . . persecution.” Ante, at 520 (majority
opinion).
IV
Because I conclude that the INA’s persecutor bar applies
whether or not petitioner’s assistance or participation in per
secution was voluntary, and because it is conceded that peti
tioner assisted and participated in persecution while serving
as an armed prison guard in Eritrea, I would affirm the deci
sion of the Court of Appeals. Accordingly, I respectfully
dissent.