Jama v. Immigration and Customs Enforcement

• Decision Date: 12 January 2005
• Docket Number: No. 03-674.,03-674.
• Citation: 543 U.S. 335
• Parties: JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
• Court: U.S. Supreme Court

543 U.S. 335

JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT

No. 03-674.

Supreme Court of United States.

Argued October 12, 2004.

Decided January 12, 2005.

Title 8 U. S. C. § 1231(b)(2) prescribes the procedure for selecting the country to which an alien ineligible to remain in the United States will be removed. Petitioner had his refugee status in the United States terminated for a criminal conviction. When he declined to designate a country to which he preferred to be removed, the Immigration Judge ordered him removed to Somalia, his country of birth, pursuant to § 1231(b)(2)(E)(iv). Petitioner filed a habeas petition to challenge the designation, claiming that Somalia had no functioning government and thus could not consent in advance to his removal, and that the Government was barred from removing him there absent such advance consent. The District Court agreed, but the Eighth Circuit reversed, holding that § 1231(b)(2)(E)(iv) does not require advance acceptance by the destination country.

Held: Section 1231(b)(2)(E)(iv) permits an alien to be removed to a country without the advance consent of that country's government. Pp. 338-352.

(a) Section 1231(b)(2) provides four consecutive removal commands: (1) An alien shall be removed to the country of his choice (subparagraphs (A) to (C)), unless a condition eliminating that command is satisfied; (2) otherwise he shall be removed to the country of which he is a citizen (subparagraph (D)), unless a condition eliminating that command is satisfied; (3) otherwise he shall be removed to a country with which he has a lesser connection (subparagraph (E), clauses (i) to (vi), including the country of his birth (clause iv)); or (4) if that is "impracticable, inadvisable or impossible," he shall be removed to another country whose government will accept him (subparagraph (E), clause (vii)). Here, the question is whether the Attorney General was precluded from removing petitioner to Somalia under subparagraph (E), clause (iv), because Somalia had not consented. Pp. 338-341.

(b) In all of subparagraph (E), an acceptance requirement appears only in clause (vii), the fourth step of the process, which the Attorney General may invoke only after finding the third step "impracticable, inadvisable, or impossible." Clauses (i) through (vi) contain not a word about acceptance by the destination country. Including the word "another" in clause (vii) does not import the acceptance requirement into clauses (i)-(vi). Such a reading stretches the modifier too far, contrary to "the grammatical `rule of the last antecedent,'" Barnhart v. Thomas, 540 U.S. 20, 26. Subparagraph (E)'s structure does not refute the inference derived from the last antecedent rule. Pp. 341-345.

(c) Nor is an acceptance requirement manifest in § 1231(b)(2)'s structure. First, the overlap between subparagraphs (D) and (E) is not so complete as to justify imposing an acceptance requirement at the third step in the name of preventing the Attorney General from "circumventing" the second step. Second, the statute expressly countenances removal to a country notwithstanding its objections. Subparagraph (C) provides that at the first step of the country-selection process, the Attorney General "may" refrain from removing an alien to the country of his choice if that country does not accept the alien; the Attorney General thus has discretion to override any lack of acceptance. Finally, the existence of an acceptance requirement at the fourth step does not imply that such a requirement must exist at the third. To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to this Court's customary policy of deference to the President in foreign affairs, and would not be necessary to ensure appropriate consideration to conditions in the country of removal, since aliens facing persecution or other mistreatment have a number of available remedies. Pp. 345-348.

(d) Contrary to petitioner's argument, the acceptance requirement is "neither settled judicial construction nor one which [the Court] would be justified in presuming Congress, by its silence, impliedly approved," United States v. Powell, 379 U. S. 48, 55, n. 13, in its most recent reenactment of § 1231(b)(2). Pp. 349-352.

329 F. 3d 630, affirmed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 352.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Jeffrey J. Keyes argued the cause for petitioner. With him on the briefs was Kevin M. Magnuson.

Malcolm L. Stewart argued the cause for respondent. With him on the brief were Acting Solicitor General Clement Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Donald E. Keener, and Greg D. Mack.^*

JUSTICE SCALIA delivered the opinion of the Court.

When an alien is found ineligible to remain in the United States, the process for selecting the country to which he will be removed is prescribed by 8 U. S. C. § 1231(b)(2). The question in this case is whether this provision prohibits removing an alien to a country without the explicit, advance consent of that country's government.

I

Petitioner Keyse Jama was born in Somalia and remains a citizen of that nation. He was admitted to the United States as a refugee, but his refugee status was terminated in 2000 by reason of a criminal conviction. See Jama v. INS, 329 F. 3d 630, 631 (CA8 2003). The Immigration and Naturalization Service (INS) brought an action to remove petitioner from the United States for having committed a crime involving moral turpitude. Ibid.; see 8 U. S. C. §§ 1182(a) (2)(A)(i)(I), 1229a(e)(2)(A). In the administrative hearing, petitioner conceded that he was subject to removal, although he sought various forms of relief from that determination (adjustment of status, withholding of removal, and asylum relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment). He declined to designate a country to which he preferred to be removed. The Immigration Judge ordered petitioner removed to Somalia, his country of birth and citizenship. The Board of Immigration Appeals affirmed that determination, and petitioner did not seek review in the Court of Appeals.

Instead, petitioner instituted collateral proceedings under the habeas statute, 28 U. S. C. § 2241, to challenge the designation of Somalia as his destination. He filed his petition in the United States District Court for the District of Minnesota, alleging that Somalia has no functioning government, that Somalia therefore could not consent in advance to his removal, and that the Government was barred from removing him to Somalia absent such advance consent. The District Court agreed that petitioner could not be removed to a country that had not consented in advance to receive him, Jama v. INS, Civ. File No. 01-1172 (JRT/AJB) (Mar. 31, 2002), p. 10, App. to Pet. for Cert. 51a, but a divided panel of the Court of Appeals for the Eighth Circuit reversed, holding that § 1231(b)(2) does not require acceptance by the destination country. 329 F. 3d, at 633-635. We granted certiorari. 540 U. S. 1176 (2004).

II

Title 8 U. S. C. § 1231(b)(2), which sets out the procedure by which the Attorney General¹ selected petitioner's destination after removal was ordered, was enacted as follows:

"(2) OTHER ALIENS. — Subject to paragraph (3) —

"(A) SELECTION OF COUNTRY BY ALIEN. — Except as otherwise provided in this paragraph — "(i) any alien not described in paragraph (1) who has been ordered removed may designate one country to which the alien wants to be removed, and

"(ii) the Attorney General shall remove the alien to the country the alien so designates.

"(B) LIMITATION ON DESIGNATION. — An alien may designate under subparagraph (A)(i) a foreign territory contiguous to the United States, an adjacent island, or an island adjacent to a foreign territory contiguous to the United States as the place to which the alien is to be removed only if the alien is a native, citizen, subject, or national of, or has resided in, that designated territory or island.

"(C) DISREGARDING DESIGNATION. — The Attorney General may disregard a designation under subparagraph (A)(i) if —

"(i) the alien fails to designate a country promptly;

"(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;

"(iii) the government of the country is not willing to accept the alien into the country; or

"(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.

"(D) ALTERNATIVE COUNTRY. — If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country —

"(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or

"(ii) is not willing to accept the alien into the country.

"(E) ADDITIONAL REMOVAL COUNTRIES.—If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General 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 or for a foreign territory contiguous to the United States.

"(iii) A country in which the alien resided before the...