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JAMA V. IMMIGRATION AND CUSTOMS ENFORCEMENT (03-674)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-674.ZS.html
Argued October 12, 2004 -- Decided January 12, 2005
Opinion author: Scalia
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Title 8 U.S.C. sect.
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 sect. 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
sect. 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. 2-17.
(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. 2-6.
(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. 6-9.
(c) Nor is an acceptance requirement manifest in sect. 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. 10-13.
(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
sect. 1231(b)(2). Pp. 13-16.
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.
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