Return to Sender: Supreme Court Authorizes Removal of Aliens Without Prior Consent from the Destination Country in Jama v. Ice - Jennifer E. Richter

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 57 No. 3

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Return to Sender: Supreme Court Authorizes Removal of Aliens Without Prior Consent from the Destination Country in Jama v. ICE

In a 5-4 decision in Jama v. ICE,¹ the United States Supreme Court rejected prior interpretations of alien removal statutes and held that the Secretary of Homeland Security² (the "Secretary") may remove aliens without prior consent from the receiving country.³ The decision has important ramifications for both statutory interpretation and immigration law. The majority, written by Justice Scalia, concluded that in the new version of the removal statute, 8 U.S.C. Sec. 1231,⁴ the rule of statutory interpretation, known as the last antecedent rule, precluded the court from reading an acceptance requirement into subsection(b)(2)(E)(iv).⁵ In contrast, the dissent concluded that use of the last antecedent rule was inappropriate in light of prior statutory interpretations and agency decisions, and that Congress intended a requirement of acceptance throughout the entire statute.⁶ Not only did the Justices disagree on how to interpret the statute, but the majority's interpretation of section 1231(b)(2)(E) eliminated an important barrier in the alien removal process, one which has the potential to complicate U.S. foreign relations.

I. Factual Background

In 1979 Keyse Jama ("Jama") was born in Somalia.⁷ He and his family fled to Kenya in 1991 to escape inter-tribal warfare.⁸ A few years later, Jama applied for admission to the United States under refugee status and was accepted in 1996.⁹ Jama moved to Minnesota where he worked and attended school.¹⁰ Three years later, Jama was convicted of third degree assault, and was sentenced to one year in jail.¹¹ The state released him on probation for three years, but sent Jama to prison after he violated his probation.¹²

At the end of Jama's prison term, the Immigration and Naturalization Service¹³ ("INS") brought removal proceedings against him.¹⁴ The presiding immigration judge found Jama removable based on his conviction.¹⁵ During this proceeding, Jama attempted to avoid removal by: (1) filing for asylum, claiming he feared persecution if he was returned to Somalia; (2) filing an application for relief under the United Nations Convention Against Torture;¹⁶ and (3) filing an application for permanent resident status.¹⁷ The judge rejected Jama's claims for relief, and ordered his removal.¹⁸ Jama elected not to choose a country for removal, and the judge ordered him removed to his birth country, Somalia, under section 1231(b)(2)(E)(iv).¹⁹ Jama appealed the order to the Board of Immigration Appeals ("BIA"), but the BIA affirmed.²⁰

Jama then filed a petition for habeas relief in the United States District Court for the District of Minnesota.²¹ He conceded that he was removable, but challenged the manner in which the INS planned to execute the order.²² Jama argued that under section 1231(b)(2)(E)(iv), the INS must receive authority from the Somalian government before sending him there.²³

Jama's arguments turned on the text of the removal statute, which sets out a step-by-step process to guide the Secretary in designating an alien's removal country.²⁴ According to the statute, the Secretary must first defer to the alien's choice of removal country.²⁵ However the Secretary may disregard the alien's choice if the country does not accept the alien or if the alien declines to choose a country for removal.²⁶ The Secretary will then designate the country of which the alien is a "subject, national, or citizen," unless the country does not accept the alien.²⁷ If the alien still cannot be removed under these previous steps, then the Secretary proceeds to section 1231(b)(2)(E), which states:

[T]he [Secretary] shall remove the alien to any of the following countries: (i) The country from which the alien was admitted to the United States. (ii) The country in which is located the foreign port from which the alien left for the United States .... (iv) The country in which the alien was born .... (vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.²⁸ @@@

If, after this designation, the alien cannot be removed, then the alien must either be detained or released in accordance with other statutory provisions.²⁹

Jama's argument, that section 1231(b)(2)(E)(iv) required the Secretary to receive acceptance from Somalia before removal, relied on the language in clause (vii) stating, "another country whose government will accept him . . . ."³⁰ Jama argued that the phrase modified not only clause (vii), but clauses (i) through (vi) as well.³¹ Jama further argued that because Somalia lacked a functioning government from which the Secretary could seek acceptance, he should not be removed until a Somalian government is created and affirmatively accepts him.³² Additionally, Jama argued that he should be released back into the United States because the Somalian government would not accept him in the foreseeable future.³³

In contrast, the INS argued that section 1231(b)(2)(E) did not require acceptance from the receiving country.³⁴ Specifically, the INS argued that although subsections (A)-(D) of section 1231(b)(2) may require acceptance, Congress did not explicitly require acceptance in subsection (E), and for this reason, removal could be effected without acceptance from the receiving country.³⁵

The district court rejected the INS's arguments and held that removal was inappropriate without advance consent from Somalia.³⁶ On appeal, the Eighth Circuit reversed, concluding that section 1231(b)(2)(E) did not require acceptance.³⁷ Jama appealed the Eighth Circuit decision, and the Supreme Court affirmed, finally settling Jama's removal to Somalia.³⁸

II. Legal Background

The new version of the removal statue, 8 U.S.C. Sec. 1231, was enacted fairly recently and few court decisions directly interpret the language at issue in Jama.³⁹ However, the statute evolved from two similarly worded statutes, thereby providing a foundation for its analysis.⁴⁰

A. Historical Interpretations of Section 1231's Predecessors Included an Acceptance Requirement

The legislation that led to section 1231 was a combination of two previously distinct removal statutes; one for deportable aliens and one for excludable aliens.⁴¹ A "deportable" alien was one who had originally been accepted into the United States, but whose status was revoked for reasons such as committing a crime.⁴² An "excludable" alien, on the other hand, was one who had never been accepted into the United States, and was therefore removable even if present on American soil.⁴³ The removal statutes for deportable aliens and excludable aliens were very similar, but not identical, and when the statutes were combined into the removal statute, the language remained substantially un-changed.⁴⁴ Courts have generally read an acceptance requirement into the removal statute for deportable aliens as well as excludable aliens, and used interpretations for one statute interchangeably with the other.⁴⁵

1. Courts read an acceptance requirement into the former statute governing removal of "deportable" aliens. The Supreme Court interpreted the removal statute for deportable aliens as requiring acceptance from the receiving country.⁴⁶ In Tom Man v. Murff,⁴⁷ a Chinese alien entered the United States on a British ship, and "long overstayed the time permissible."⁴⁸ The alien was deemed deportable, but could not be removed because the United States did not recognize China's communist government, and therefore could not request acceptance from China's government.⁴⁹ The district court ordered the release of the alien back into the United States, and the INS appealed.⁵⁰ The court of appeals affirmed the release of the alien, reasoning that "deportation under any of these [sections] is subject to the condition expressed in the seventh subdivision: i.e. that the 'country' shall be 'willing to accept him 'into its territory.'"⁵¹ Clearly, the court construed the statute as requiring acceptance throughout.⁵² In addition, the court noted that "it would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance, when it was possible to ascertain the truth in advance by inquiry."⁵³

2. Courts also read an acceptance requirement into the former removal statute governing "excludable" aliens, but judicial support for the requirement was less settled. The acceptance requirement for deportable aliens was relatively stable under the decision in Tom Man; however, the law was less settled in the area of excludable aliens.⁵⁴ For example, in Amanullah v. Cobb,⁵⁵ a majority of the First Circuit Court of Appeals held that acceptance was required prior to the removal of excludable aliens,⁵⁶ while the Second Circuit declined to require acceptance in Menon v. Esperdy.⁵⁷

The majority in Amanullah reasoned that when Congress adopted the exclusion statute, it "manifested its intent to establish a common procedure for both excludable and deportable aliens."⁵⁸ Thus, the court relied on Tom Man and held that acceptance by the receiving country was required for removal.⁵⁹ The court of appeals further reasoned that "Congress could not have intended to permit the United States government to engage in the practice of placing refugees in orbit: in flight from country to country, none willing to accept them."⁶⁰

Though concurring, Judge Aldrich vigorously disagreed with the majority's disregard of "the substantive difference, and interests, between refusing admission to an illegal alien, and expelling one that is already here."⁶¹ Judge Aldrich argued that the processes of removing a deportable alien and an excludable one were distinct and should be treated as such.⁶² He contended that aliens who entered the United States with permission and then became deportable should have...