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Disquieting Eighth Circuit Decision on Removal to Somalia

by Carl R. Baldwin

In Jama v. INS, No. 02-2324 (8th Cir. May 27, 2003) the court approved the removal to Somalia of a man born there, even though the country has no functioning central government that could agree to accept him. The decision will shock Somali detainees and their advocates.

Several years after entering the US in refugee status, Mr. Jama pleaded guilty to third degree assault in state court, a felony. The INS regarded the crime as one "involving moral turpitude," and after time served commenced removal proceedings. Mr. Jama conceded removability, and requested asylum and relief under the U.N. Convention Against Torture. The immigration judge denied the requests, and the BIA affirmed. Mr. Jama then filed a writ of habeas corpus to prevent the execution of the removal order. The district court granted the relief, and issued this order: "Respondent (INS) is ordered not to remove petitioner from the United States until the government of the country to which he is to be removed has agreed to accept him…" The INS appealed. The circuit agreed that the district court had jurisdiction, but reversed the grant of the writ.

What it comes down to is this: Was the petitioner right in arguing that the removal order could not be executed if Somalia, the receiving country, did not have a functioning central government that could agree to accept him? The court said No, and the one dissenter quoted Learned Hand and said Yes. The court, in my opinion, seemed strangely indifferent to the possible consequences that the lack of a central government could have on the deportee at the port of entry. Will he be met and dealt with by one of the roaming warlords that Mogadishu is famous for? The court seems rather blasé about whether the INS even has to pay attention to what a home country has to say. This, at any rate, is what I glean from its assertion that "between countries it is not uncommon behavior to attempt to accomplish a task by asking politely at first, and then to act anyway if the request is denied." Is this some new "rough and ready" style of international relations that we need to get used to?

The statute at issue is INA Section 241(b), "Countries to which aliens may be deported." The court focussed on Section 241(b)(2)(E), "Additional removal countries." At clause (iv) we have: "The country in which the alien was born," and that is what the court settles on. But in clause (vii) we read: "If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien."

Hold on, for a minute. Congress wrote that clause, didn't it? From the plain language of the statute, does it not appear that two things are necessary before a deportation can legally be effected: first, a "government," and second, an "acceptance" of the alien's return by that government?

Isn't it at the very least "inadvisable" to remove an alien to a country without a government, and shouldn't the INS, to comply with the statute, have looked for another country?

The district court made much of clause (vii). "Therefore, in order to render meaningful force to all the provisions of the statute, the Magistrate Judge concluded that the acceptance requirement listed in the seventh clause …was meant to apply to all the clauses listed (in subsection E)." The district court went on: "It is well established that when interpreting a statute, a court must seek to adopt a conclusion that gives effect to all its provisions."

The circuit court relies on the Latin maxim, "expressio unius exclusio alterius" ("expression of the one is the exclusion of the other"), to overrule the district court. It states: "Congress did not insert an acceptance clause into the self-contained provisions that appear in clauses (i) through (vi)." The court seems to be saying that the acceptance requirement must be written into each and every clause of subparagraph E in order to be effective. I must say that I find that statutory construction very puzzling, and it seems effectively to read clause (vii) out of subsection E.

The dissenting opinion quotes Learned Hand, and cites cases ruling out deportation unless the receiving country agrees to accept the alien. The dissenter observes: "The long-standing policy and, until recently, practice of the INS have been consistent with Judge Hand's interpretation. See 8 C.F.R. Section 241.4(k)(l)(i)."

The Eighth Circuit decision strikes a discordant note against recent judicial developments affecting Somalis. How will it affect the order by Ninth Circuit U.S. District Judge Marsha J. Pechman to certify a habeas and declaratory class of Somalis under final orders of removal, and grant a permanent injunction barring their removal to Somalia? (See Interpreter Releases, March 24, 2003.) We may have to wait for the Ninth Circuit to decide the appeal, and then to see whether a division among the circuits will prompt Supreme Court review of this troublesome issue.

In the meantime, Mr. Jama and other former Somali refugees wait in detention, and hope that a higher court will one day decide, as Judge Pechman did last January, that their release from detention is compelled by Zadvydas v. Davis, 533 U.S. 678 (2001).

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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