9th Circuit Upholds Nationwide Injunction Of Removals To Somalia

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT UPHOLDS NATIONWIDE INJUNCTION OF REMOVALS TO SOMALIA
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

The U.S. Court of Appeals for the Ninth Circuit has upheld a nationwide permanent injunction prohibiting the government from conducting removals to Somalia. The ruling comes on appeal from the federal district court in Seattle. The decision affirms that federal courts can issue a nationwide injunction in habeas corpus proceedings, that immigration law restrictions on federal court jurisdiction do not prohibit such an order, and that both immigration law and international law prohibits forcible removal of a person to a country where the government has not agreed to accept the person.

The petitioners in this case are Somali nationals subject to final orders of removal. They argued that they cannot be removed to Somalia because there is no government in that country to accept their removal and offer them protection. The district court found that section 241(b) of the Immigration and Nationality Act, which governs the determination of the country or countries to which respondents may be deported, requires that a government accept a person before the person can be removed to that country. The court rejected the U.S. government's contentions that acceptance is not required where the removal is made to a country where the individual was born and that where there is no government to reject a person, "acceptance" has occurred. The court also certified a nationwide class and entered a permanent injunction (for more on the district court proceedings, see "District Court Enjoins Removals to Somalia," IMMIGRANTS' RIGHTS UPDATE, Feb. 21, 2003, p. 10).

On appeal, the court of appeals first addressed the government's contention that the district court lacked jurisdiction. The court rejected the government's argument that the plaintiffs' claims should be barred for failure to exhaust administrative remedies. The court found that the exhaustion requirement for judicial review of removal orders of INA sec. 242(d)(1) does not apply to petitioners' habeas action, because the petitioners are not seeking review of their removal orders, but rather challenge the statutory authority of the government to remove them to a country that has not accepted them. The court also found that the doctrine of prudential exhaustion does not require exhaustion in this case.

The court also rejected the government's contention that jurisdiction is barred by INA sec. 242(g), which bars courts from considering "any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien," except by petition for review. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), the Supreme Court narrowly construed sec. 242(g) to apply only to challenges to discretionary decisions of the attorney general as to whether to proceed with removal cases, as when the attorney general decides whether to grant deferred action. In contrast, the Ninth Circuit noted that in this case the petitioners raise a purely legal challenge in contending that the attorney general does not have statutory authority to remove them to Somalia. The court also noted that both the Ninth Circuit and the Supreme Court have rejected the government's claim that sec. 242(g) eliminates habeas jurisdiction. Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999); INS v. St. Cyr, 533 U.S. 289 (2001).

Turning to the merits, the court determined that the plain language of INA sec. 241(b)(2) requires that in every case a country must be willing to accept a person before that person can actually be removed to that country. The court found this interpretation also supported by the case law interpreting the similar language of the statutory predecessor to sec. 241(b), former INA sec. 243(a) (1995). The court also found that the INS's own operating instructions and regulations establish a policy of only removing non-U.S. citizens to countries that are willing to accept them. And the court also upheld the district court's conclusion that interpreting the statute in this manner avoids violating international law, applying the principle that a statute should be construed, where possible, so as to avoid violating international law.

In reaching these conclusions, the court disagreed with the majority opinion in Jama v. INS, 329 F.3d 630 (8th Cir. 2003), in which the Eighth Circuit concluded that sec. 241(b) does not require that Somalia consent to a petitioner's removal. The court found more persuasive the dissent of Judge Bye in Jama. The court also upheld the district court's certification of a nationwide class and issuance of a nationwide injunction. The court rejected the government's contention that INA sec. 242(f)(1), which limits the power of courts "to enjoin or restrain the operation of" the provisions of Part IV of Title II of the INA, applies in this case. The court concluded that this statute is not applicable because the petitioners "seek not to enjoin the operation of [sec. 241(b)] but violations of the statute" (emphasis in original). Because the petitioners seek "to enjoin conduct that allegedly is not even authorized by the statute," the court found that sec. 242(f)(1) is not implicated in this case. Finally, the court upheld the district court's grant of the habeas petitions of three of the individual petitioners.

Ali Ali v. Ashcroft, No. 03-35096
(9th Cir. Sept. 17, 2003).