Supreme Court: Deportees to be Sent Home Without Consent From Home Country

Jama v. Immigration and Customs Enforcement, 2005 LEXIS 626. 

The United States Supreme Court recently held that a Somalian refugee whose status was revoked for a criminal conviction could be removed to Somalia despite the fact that the country had no functioning government and could not consent in advance to his removal. 

When an alien is found to be ineligible to remain in the United States, 8 U.S.C. § 1231(b)(2) states the process for determining the country to which the alien will be removed. The Court summarized the relevant portions of section 1231(b)(2), stating that the statute provides for four consecutive removal commands. First, an alien shall be removed to the country of his choice, unless one of the conditions eliminating that command is satisfied (subparagraphs (A) to (C)). Second, he shall otherwise be removed to the country of which he is a citizen, unless one of the conditions eliminating that command is satisfied (subparagraph (D)). Third, he shall otherwise be removed to one of the countries with which he has a lesser connection (clauses (i) to (vi) of subparagraph (E)). These include (i) the country from which the alien was admitted to the U.S., (ii) the country in which is located the foreign port from which the alien left for the U.S. or for a foreign country contiguous to the U.S., (iii) the country in which the alien resided before entering the U.S., (iv) the country in which the alien was born, (v) the country that had sovereignty over the alien’s birthplace when the alien was born, and (vi) the country in which the alien’s birthplace is located when the alien is ordered removed. And fourth, if the first through third commands are “impracticable, inadvisable, or impossible,” the alien should be removed to “another country whose government will accept the alien into that country” (clause (vii) of subparagraph (E)). 

In this case, the alien declined to designate a country of choice, thus making the first command inapplicable. The alien was a citizen of Somalia, but since the country had no functioning government and could not accept him, the second command also did not apply. The issue now before the Court arose when, under the third step, the Attorney General attempted to remove the alien under clause (iv) of subparagraph (E), which permits the Attorney General to remove the alien to the country in which the alien was born. The alien contested that because Somalia had not given consent, he should not be removable under clause (iv) to that country. 

The Court found that the only acceptance requirement in subparagraph (E) was found in clause (vii), which can be invoked only if the clauses (i) through (vi) are “impracticable, inadvisable, or impossible.” Each of the clauses (i) through (vi) do not contain a word about an acceptance requirement on the part of the destination country. The Court concluded that the acceptance requirement does not stretch back from clause (vii) to clauses (i) through (vi), and therefore clauses (i) through (vi) do not require the acceptance of the destination country. 

The Court stated that an acceptance requirement is not manifested in § 1231(b)(2)’s structure; an existence of an acceptance requirement at the fourth command does not imply that such a requirement exists at the third. As a result, the Court held that it was permissible under § 1231(b)(2)(E)(iv) for the alien to be removed to Somalia, his country of birth, without the advance consent of that country’s government.


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