Ali v. Ashcroft

• Citation: 346 F.3d 873
• Decision Date: 17 September 2003
• Docket Number: No. 03-35096.,03-35096.
• Parties: Yusuf Ali ALI; Mohamed Aweys; Mohamed Hussein Hundiye; Gama Kalif Mohamud, Petitioners-Appellees, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service; Robert S. Coleman, Jr., Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

346 F.3d 873

Yusuf Ali ALI; Mohamed Aweys; Mohamed Hussein Hundiye; Gama Kalif Mohamud, Petitioners-Appellees, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service; Robert S. Coleman, Jr., Respondents-Appellants.

No. 03-35096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 2003 — Seattle, Washington.

Filed September 17, 2003.

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Greg D. Mack, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondents-appellants.

Nicholas P. Gellert, Perkins Coie LLP, Seattle, Washington, for the petitioners-appellees.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV 02-2304 MJP.

Before: Thomas M. REAVLEY,^* A. Wallace TASHIMA, and Richard A. PAEZ, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Reavley.

OPINION

TASHIMA, Circuit Judge.

The question we must answer is whether the United States can remove aliens to Somalia, a country that does not have a functioning government to accept them. In a well-reasoned opinion, the district court found that it cannot. See Ali v. Ashcroft, 213 F.R.D. 390 (W.D.Wash.2003). We agree with the district court and therefore affirm. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

Tom Ridge, Secretary of the Department of Homeland Security, the Bureau of Immigration and Customs Enforcement, and officials of the former Immigration and Naturalization Service ("INS")¹ (collectively, the "government") appeal the district court's order granting a petition for a writ of habeas corpus. Petitioners-Appellees, natives and citizens of Somalia, sought an order enjoining the INS from removing them to Somalia because there is no government in Somalia to accept them. Petitioners also sought certification of a nationwide habeas and declaratory class composed of all persons in the United States who are subject to orders of removal to Somalia. The district court granted a permanent injunction and the motion for class certification. The court ordered the INS not to remove any person in the nationwide class to Somalia and ordered the release of three of the named petitioners.

BACKGROUND

There are four named petitioners on appeal: Yusuf Ali Ali, Mohamed Aweys, Mohamed Hussein Hundiye, and Gama Kalif Mohamud. All four were ordered removed from the United States on various dates in 2000 and 2001, but each had been released from INS custody because removal to Somalia "was not likely to occur in the reasonably foreseeable future." Ali, 213 F.R.D. at 397. Mohamud was taken back into custody in June 2000 for alleged violations of the conditions of his release. The other three petitioners were re-detained in November 2002 because "the local District Director's office was informed that plans were underway for [their] imminent removal to Somalia." Id.

In response to their renewed detention, Petitioners filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, seeking to enjoin the INS from removing them to Somalia because Somalia does not have a government recognized by the United States and thus could not accept them. Petitioners contended that removing them to Somalia "without acceptance by a stable government" would subject them to "great risk of robbery, enslavement, injury or death." The district court granted a temporary restraining order enjoining the INS from removing Petitioners to Somalia or any other non-designated country.

Petitioners then filed an amended habeas petition, raising the issue on behalf of themselves and a nationwide class. In December 2002, the district court granted Petitioners' motion for a temporary restraining order on behalf of the nationwide class. After hearing oral argument, the court orally granted a preliminary injunction and certified a nationwide class. Following further briefing, the court declared the injunction permanent. The government filed a timely notice of appeal.

STANDARD OF REVIEW

The district court's decision to grant a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is subject to de novo review. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.2002). Whether the district court had jurisdiction over a habeas petition is also reviewed de novo. Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir.2000). The district court's decision to grant a permanent injunction is reviewed for an abuse of discretion, but the rulings of law underlying the grant of injunctive relief are reviewed de novo. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002); Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998). The district court's factual findings are entitled to deference unless clearly erroneous. Walters, 145 F.3d at 1047.

DISCUSSION

We first address the government's challenges to the district court's jurisdiction. Second, we turn to the government's argument that the district court erroneously concluded that 8 U.S.C. § 1231 does not allow the INS to remove an alien unless the country of removal accepts the alien. Third, we consider the propriety of the district court's certification of the nationwide habeas class. Finally, we address the district court order that three of the four named Petitioners be released from custody.

I. District Court Jurisdiction over Habeas Petition

A. Administrative Exhaustion

The government argues that Petitioners failed to exhaust their administrative remedies as required by 8 U.S.C. § 1252(d)(1), precluding judicial review. Section 1252(d)(1) provides that "[a] court may review a final order of removal only if... the alien has exhausted all administrative remedies available to the alien as of right." We have previously drawn a distinction, however, "between jurisdiction to rule on the merits of an individual deportation order and jurisdiction to rule on an alleged pattern and practice of constitutional or statutory violations." El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir.1992), as amended.

Contrary to the government's contention, Petitioners do not simply challenge the validity of their orders of removal. Instead, they question whether the statute grants the INS authority to remove them to a country that cannot accept them. Thus, this case is similar to El Rescate, in which we held that administrative exhaustion was not required where, rather than challenging "the validity of any deportation or exclusion order or of any ruling in an immigration proceeding," the appellees were challenging the INS' failure to require translation of all deportation proceedings. Id. at 747. We therefore agree with the district court that § 1252(d)(1) does not apply here.

A prudential exhaustion requirement may also be applied where agency expertise requires the agency to develop a proper record, relaxation of the exhaustion requirement would encourage deliberate bypass of the administrative scheme, and administrative review would allow the agency to correct its own mistakes. El Rescate, 959 F.2d at 747. Each of the factors involved in prudential exhaustion weighs against applying a prudential exhaustion requirement here. Further development of the record is unnecessary because Petitioners have raised a purely legal question. Moreover, the INS' position — that it is statutorily authorized to remove Petitioners to a country that cannot accept them — is set, making it likely that recourse to administrative remedies would be futile. See id. at 747-48 (stating that it was unrealistic to require the plaintiffs to exhaust their administrative remedies where the Board of Immigration Appeals had already announced and reaffirmed its policy); see also Castillo-Villagra v. INS, 972 F.2d 1017, 1024 (9th Cir.1992) (concluding that prudential exhaustion did not apply where the INS had already taken the challenged position in a number of similar cases). Failure to exhaust administrative remedies does not bar judicial review here.

B. 8 U.S.C. § 1252(g)

Under 8 U.S.C. § 1252(g), "no court shall have jurisdiction to hear 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." The district court concluded that Petitioners raised a purely legal question, rather than a challenge to the Attorney General's discretionary decision to execute their removal. Ali, 213 F.R.D. at 399. The government asserts, however, that Petitioners' claims fall within the purview of § 1252(g)'s restriction on jurisdiction; consequently, that the district court erred in concluding that it had jurisdiction. We disagree.

The government takes issue with the district court's finding that Petitioners raise a purely legal question and thus do not challenge the Attorney General's discretionary decision to execute their removal. See Ali, 213 F.R.D. at 398. We reject this argument. The issue Petitioners raise is the legal question of whether § 1231 authorizes the Attorney General to remove them to a country that does not have a government that can accept them. Cf. Walters, 145 F.3d at 1052 (stating that the government did not and could not assert that § 1252(g) prevented the district court from exercising jurisdiction over the plaintiffs' due process claims because the claims "do not arise from a `decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien,' [8 U.S.C. § 1252(g),] but instead constitute `general collateral challenges to unconstitutional practices and policies used by the agency'") (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)).

The government argues that § 1252(g) bars habeas jurisdiction because the statute authorizes only "one avenue for consideration" of a claim arising from the...