Jama v. Immigration and Customs Enforcement - Opinion Announcement

Argument of Speaker

Mr. Speaker: Justice Scalia has two opinions to announce.

Argument of Justice Scalia

Mr. Scalia: These are both cases involving immigration.

The first one is No. 03-674, Jama versus Immigration and Customs Enforcement.

The case comes to us on writ of certiorari to the Eighth Circuit.

The petitioner is a citizen of Somalia who was admitted to the United States as a refugee.

After he was convicted of a crime involving moral turpitude, the Immigration and Naturalization Service instituted proceedings to remove him from the United States.

Petitioner conceded that he was removable and the immigration judge designated Somalia as the country to which he would be removed.

Petitioner sought habeas corpus relief in Federal District Court.

He contended that the immigration laws preclude his removal to Somalia without the advance consent of that nation’s government and that because Somalia has no functioning government, the United States could not obtain the requisite consent.

The District Court agreed but the Eighth Circuit reversed that decision holding that no advance consent is required.

In an opinion filed today with the Clerk, we affirm the judgment of the Eighth Circuit.

When an alien in petitioner’s situation is ordered removed, Section 1326(b)(2) of Title 8 sets out a 4-step procedure for selecting the destination country.

First, the alien shall be removed to the country of his choice.

The statute says that the Attorney General may, not that he must, but that he may disregar that choice for various reasons including the unwillingness of the chosen country to accept the alien.

If the alien is not removed on the first step, step two provides he shall be removed to the country of which he is a citizen unless that country fails to manifest its acceptance within a reasonable time.

If step two, the citizenship test does not produce removal, step three, provides that the alien shall be removed to one of a list of countries with which he has a lesser but still significant connection including the country of his birth; and finally, if removal to every country on the list in step three is “impractical, inadvisable, or impossible” the alien shall be removed to “another country whose government will accept the alien into that country.”

The question here is whether the Attorney General was precluded from removing petitioner under the third step to Somalia, his country of birth because Somalia had not agreed to accept him.

We conclude not.

Subparagraph E of Section 1326(b)(2) sets out the third step of the process in clauses (i) through (vi), and the fourth step in clause (vii).

In all of subparagraph E, an acceptance requirement appears only in the terminal clause (vii), a clause that the Attorney General may invoke only after he finds that all of the removal options presented in the other six are "impractical, inadvisable, or impossible".

Clauses (i) through (vi) come first in the statute and in the process of selecting a country.

Those six clauses contain not a word about acceptance by the destination country.

That absence is conspicuous because at each other step of the process, the statute prescribes the effect to be given non-acceptance.

What petitioner wants us to do is to infer from the phrase in clause (vii), another country whose government will not accept the alien into that country.

To infer from that, that clause (i) through (vi) also refer only to countries whose governments will accept.

We conclude however, that the structure of the paragraph which places that phrase in a separately numbered clause and the grammatical rule of the last antecedent which we have used in other cases limit the effect of that language to the terminal clause in which it appears.

Moreover, to hold otherwise would be to conclude that removal under clauses (i) through (vi) could be “inadvisable, impractical, or impossible” thus making clause (vii) applicable when in fact it is nothing of the kind.

The record before us demonstrates that removing petitioner to Somalia involves nothing more than putting him on one of the regularly scheduled flights from Dubai or Nairobi.

We also believe that there is no warrant in the structure of 1231(b)(2) for reading an acceptance requirement into the third step for reasons that I need not be labored.

The removal statute finally was enacted in its present form in 1996 and petitioner points to a Second Circuit case that read an acceptance requirement into its statutory predecessor which dates back to 1952.

In reenacting a statute unchanged, Congress sometimes ratifies a well established judicial interpretation, but a single decision by a single Court of Appeals is not a sufficient basis for finding such ratification, and even if it were, the present day removal statute traces its antecedents to two prior provisions, not just the one involved in the Second Circuit opinion.

For these reasons and others expressed in our opinion today, we hold that Section 1231(b)(2) permits removal of an alien to a country selected at step three whether or not that country has agreed to accept it.

Accordingly, we affirm the judgment of the Eighth Circuit.

Justice Souter has filed a dissenting opinion in which Justices Stevens, Ginsburg, and Breyer have joined.