Jama, Keyse v. Immigration & Naturalization Service (01/12/2005)

Questions presented:Whether immigration officials may remove a person to his country of birth under 8 U.S.C. 1231(b)(2)(E)(iv), where that country lacks a functioning central government that is able either to accept the person's return or to withhold acceptance?

BY SHANA WILSON, MEDILL NEWS SERVICE

In late June 1999, Somalian refugee Keyse Jama was arrested and charged with assault following a stabbing incident in Minnesota. In September of that year, Jama pled guilty to felony third degree assault. He served time in state prison and was released in June 2000.

But rather than going free at the end of his sentence, Jama was detained by the Immigration and Naturalization Service. Under federal law, the government has the authority to deport foreign-born residents who have been convicted of serious crimes, and government officials began proceedings to send Jama back to Somalia.

Jama conceded his removability, but applied for asylum, claiming he would be persecuted if he returned to the East African country. In August 2000, an immigration judge held that Jama was removable because he had been convicted of a "crime of moral turpitude," and denied his applications for asylum and permanent resident status.

The Board of Immigration Appeals affirmed and a warrant was issued for Jama's removal.

But on June 28, 2001, Jama filed a petition for a writ of habeas corpus in the District Court of Minnesota. The petition did not challenge the validity of his removal order. Instead, Jama claimed that the INS should not be allowed to transport him to Somalia and drop him off there until some proper government authority in Somalia agreed to accept him.

The U.S. Department of State has categorized Somalia as having no functioning government since civil war broke out in 1991, which would make it impossible to get consent from the Somalian government.

But the INS claims that the fourth clause of the statute in question, 8 U.S.C. sec. 1231(b)(2)(E), does not require consent before sending Jama back to Somalia, where he was born in 1979. The INS also challenged the District Court's jurisdiction to review a habeas claim.

On March 31, 2002, U.S. District Judge John Tunheim adopted a magistrate's decision granting Jama's application for writ of habeas corpus and denying the INS' motion to dismiss.

In appealing to the 8th Circuit Court of Appeals, the INS argued that the District Court misconstrued the syntax of the statute when it ruled that the prior acceptance requirement applies to every clause in the law.

On May 27, 2003, a divided 8th Circuit panel reversed.

"Our careful review of the statute reveals that, as a matter of simple statutory syntax and geometry, the acceptance requirement is confined to clause (vii), and does not apply to clauses (i) through (vi)," Judge Morris Sheppard Arnold wrote for the majority. "In other words, we believe that the short answer to Mr. Jama's assertion (that the INS must obtain prior acceptance before returning him to the country of his birth) is that Congress did not write the statute that way."

Arnold added, "Whether it is politically wise, efficient, or considerate of the United States to remove an alien without the prior acceptance of the alien's destination country is, quite simply, a question that lies outside our province."

Judge Kermit Bye agreed that the district court and appeals court had jurisdiction to consider Jama's habeas petition, but dissented, saying a decision against Jama goes against nearly fifty years of court precedent and INS policy.

"With this change in policy, we abandon a stateless person without a passport or traveling documents in a war-torn country victimized by battling warlords and without a central government," Bye wrote. "By doing so, I fear we abandon order and risk the doom of liberty."

Jama sought review from the U.S. Supreme Court. In reply, U.S. Solicitor General Theodore Olson urged the Court to deny Jama's petition for a writ of certiorari. In the brief, Olson argued that Congress included the requirement of acceptance as a condition in some clauses, but no such requirement was stated in the clause in question.

"That omission is critical, for [w]here Congress includes particular language in one section of [the Immigration and Naturalization Act] but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion," Olson wrote, citing an opinion from a 5th Circuit case.

On Feb. 23, 2004 the Court accepted review of the case.

Somalia is the only nation in the world that the U.S. Department of State categorizes as having no functioning government. It has been plagued by clan warfare and violence since civil war broke out in 1991, making it impossible to get consent from the Somalian government.

Because the question at hand was whether the government can deport someone to Somalia, where there is no government to grant prior acceptance, the Court's decision was expected to have major ramifications not only for others in Jama's position but for Somalians who have not been convicted of crimes in the U.S. According to the Executive Office for Immigration Review, more than 3,000 Somalians living in the United States have been given removal orders since 1999.

On Jan. 12, 2005, a divided Court sided 5-4 with the INS, concluding that the statute permits an alien to be removed to a country without the advance consent of that country's government.

Justice Antonin Scalia wrote the majority opinion. Justice David Souter wrote the dissent for himself and Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

Attorneys;For Keyse G. Jama:Jeffrey J.KeyesBriggs and Morgan, P.A.80 South Eighth StreetMinneapolis,MN55402(612) 977-8540

For Immigration and Naturalization Service:THEODORE B. OLSONSolicitor GeneralCounsel of RecordPETER D. KEISLERAssistant Attorney GeneralDAVID J. KLINEDONALD E. KEENERGREG D. MACK