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In a 5-4 decision, the U.S. Supreme Court has ruled that the Immigration
and Nationality Act does not require the Dept. of Homeland Security
(DHS), before it carries out an order that a non–U.S. citizen be removed
to his or her country of nationality, to first obtain the consent of
that country’s government. The ruling permits the removal of a Somali
national to his country despite his contention that the removal would be
illegal, since Somalia has no functioning government that could consent
to his being removed to Somalia. The decision affirms a ruling of the
Eighth Circuit Court of Appeals and effectively overrules a nationwide
injunction against removals to Somalia that was issued by the Ninth
Circuit Court of Appeals (for background, see “9th Circuit Upholds
Nationwide Injunction of Removals to Somalia,”
Immigrants’ Rights Update,
Oct. 21, 2003, p. 6).
The Court’s ruling is based on the language of INA
section 241(b)(2), which specifies the procedure to be followed in
selecting the country to which a noncitizen will be removed. This
statute provides noncitizens the right to designate the country to which
they will be removed, but it also provides guidelines for the DHS to
follow in selecting an alternative “country of removal” if a noncitizen
declines to choose one or if it is impossible to remove the person to
the country he or she has designated. While in some of the alternatives
provided for in the guidelines the statute explicitly requires that the
country of removal be one where the government will permit the removal,
the provision authorizing removal to the country where the subject of a
removal order was born does not contain this requirement.
Noting that “[w]e do not lightly assume that
Congress has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even greater when
Congress has shown elsewhere in the same statute that it knows how to
make such a requirement manifest,” Justice Scalia, writing for the
majority, concluded that the statute does not require that the Somali
government consent to the removal to Somalia of the petitioner in this
case. The Court did note that the statute provides that in cases where
removal to a particular country is “impractical, inadvisable, or
impossible,” other countries may be considered as possible destinations,
and “[n]onacceptance [of the person to be removed] may surely be one of
the factors considered in determining whether removal to a given country
is impracticable or inadvisable.” However, the Court concluded that in
such a case the statute does not preclude removal to the nonaccepting
country.
Justice Souter dissented, joined by Justices
Stevens, Ginsburg, and Breyer, contending that the majority’s
interpretation of the statute “is at war with the text, structure,
history, and legislative history of the statute.”
Jama v. Immigration and Customs Enforcement,
No. 03-674 (U.S. Supreme Court, Jan 12, 2005).
By
Linton Joaquin,
NILC executive director
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