DHS & AG Issue Proposed Rule On Countries To Which Non-Citizens Can Be Removed

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DHS & AG issue proposed rule on countries to which noncitizens can be removed
Immigrants' Rights Update, Vol. 18, No. 5, August 9, 2004

The secretary of Homeland Security and the attorney general have jointly published a proposed rule that would amend the regulations of both agencies concerning the execution of removal orders, specifically with respect to the choice of the country to which a non–U.S. citizen can be removed. The proposed rule would allow the U.S. to remove noncitizens to countries that are not willing to accept them, and to countries that have no established government able to give such acceptance. The rule addresses an issue that is currently before the Supreme Court in the appeal of a ruling of the Eighth Circuit Court of Appeals—Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 S.Ct. 1407 (2004).

In Jama, the issue is whether the Immigration and Nationality Act authorizes the Dept. of Homeland Security (DHS) to remove a Somali national to Somalia despite the absence of a government able to accept him. Although the Eighth Circuit concluded that a government’s acceptance was not required, the Ninth Circuit has ruled that the INA requires such acceptance, upholding a nationwide injunction against removals to Somalia. Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003) (see “9th Circuit Upholds Nationwide Injunction of Removals to Somalia,” Immigrants’ Rights Update, Oct. 21, 2003, p. 6). And most recently, in El Himri v. Ashcroft, __ F.3d __, No. 03-71152 (9th Cir. Aug. 2, 2004), the Ninth Circuit granted the petition for review of two stateless Palestinians born in Kuwait, finding that the immigration judge violated the INA by ordering the petitioners’ removal to Jordan without having any evidence that the government of Jordan would be willing to accept them.

The proposed rule provides that an order of an immigration judge designating one or more countries of deportation does not limit the authority of the DHS to remove noncitizens to nondesignated countries, and specifies that in various circumstances “acceptance is not required to remove an alien to a receiving country.” The proposed rule also deletes various provisions in the current regulations that do require consideration of a “receiving country’s willingness to accept the alien into its territory,” such as 8 CFR sec. 241.13(f). The supplementary information to the rule explains that the “practical significance” of the question of whether a government’s acceptance is legally required to carry out a removal is limited to situations where a country lacks a functioning central government, because it is the “general practice” of the executive branch “not to attempt to remove an individual . . . to a country whose government refuses to accept him.” However, the terms of the rule would allow the U.S. to forcibly remove individuals despite the express refusal of the receiving government to accept them.

The DHS and the attorney general invite public comment on the proposed rule, and comments must be received on or before Aug. 18, 2004.

69 Fed. Reg. 42901–12 (July 19, 2004).