Example 1.8

Takeaway point 1.8: Anticipate and confront especially damaging facts and figure out how to defang them.

It’s easy to tug heartstrings when your client is an elderly homeowner or to have your concerns taken seriously when you’re prosecuting criminals.

The following passage discusses Daniel Negusie, who sought asylum in the United States. He had previously been a prison guard during a war between Eritrea and Ethiopia, and he was denied asylum because of his role during that conflict. He argued that the federal immigration laws, which bar persecutors from obtaining asylum in the United States, do not apply to asylum applicants who were coerced into being persecutors. To give a sense of what the government alleged, here is an excerpt from the other side’s brief, making Negusie look like a typical prison guard:

[Negusie] carried a gun and was responsible for keeping control over prisoners and preventing their escape. His duties also included “punish[ing] the prisoners … by exposing them to the extreme sun heat” and denying them water, forbidding them to take showers, and keeping them from ventilation and fresh air. Petitioner routinely stood guard over prisoners who were kept in the sun as a form of punishment or execution. Petitioner was aware that prisoners died when ex- posed to the sun “for more than a couple of hours,” and he knew that at least one person he guarded died as a result of sun exposure. Petitioner acknowledged his integral role in the torture and execution of prisoners....

And yet Negusie won at the Supreme Court largely by showing that he was a victim not a war criminal. The following passage reveals how he accomplished this goal.

Source: Negusie’s brief in Negusie v. Holder, 555 U.S. 511 (2009) (citations omitted).

Notice how the word “subsequently” obfuscates (intentionally) how much time passed.

This fact — that Negusie painted ships — is designed to show that Negusie left the prison system during peacetime, suggesting that he worked as a guard only because he was forced to do so.

The lawyers cleverly use this footnote to prevent the Court from questioning the truthfulness of Negusie’s account of his prison service. Appellate courts will rarely revisit a trial court’s (or agency’s) factual findings — and you should remind reviewing courts when facts cannot be second-guessed.

The lawyers demonstrate that Negusie was coerced; he was punished when he disobeyed orders.

The implicit message of this passage is that Negusie was persecuted for being Christian. Those facts are designed both to increase empathy toward him and to improve his chance of getting asylum, which is available to individuals who reasonably fear religious persecution. Eritrea, however, is at least 48 percent Christian — hardly a helpless minority. Only 1 percent of citizens, however, are Protestants. Rather than delving into Eritrean demographics or the risk of persecution to Protestants in Eritrea, the brief just states Negusie’s religion and lets readers draw their own conclusions, which likely help Negusie.

Earlier, we learned that Negusie would be punished harshly if he refused to work as a prison guard. This fact anticipates another question on readers’ minds: why didn’t he try to escape? Top lawyers anticipate readers’ concerns and address bad facts — without saying that they are doing so.