Jama v. Immigration and Customs Enforcement – Oral Argument – October 12, 2004

Media for Jama v. Immigration and Customs Enforcement

Audio Transcription for Opinion Announcement – January 12, 2005 in Jama v. Immigration and Customs Enforcement

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William H. Rehnquist:

We’ll hear argument next in No. 03-674, Keyse Jama v. the INS.

Mr. Keyes.

Jeffrey J. Keyes:

Mr. Chief Justice, and may it please the Court:

The Eighth Circuit’s decision that petitioner, a citizen and a national of Somalia, can be deported to Somalia should be reversed.

The applicable removal statute requires acceptance from the country of which the alien is a subject, national, or citizen.

That statute is 8 U.S.C. 1231 (b)(2)(D) as in David, which we have referred to as step two.

The Eighth Circuit acknowledged that acceptance is required for such a removal.

The parties agree that Somalia has no functioning government that can give acceptance in this case, as that term is used in the statute.

William H. Rehnquist:

Mr. Keyes, we’re not talking about removability here, are we, I mean, in the sense that a dispute over whether he could be removed?

It’s just a question of where he can be removed to.

Jeffrey J. Keyes:

That is correct, Your Honor.

The circuit court ruled, however, that petitioner could be deported to Somalia because the statute provides that if the alien is not removed to his country of citizenship, then he can be removed to a list of additional countries in the next step of the statute, 1231(b)(2)(E), including the country of birth.

The circuit court erred in that ruling for the following reasons.

Ruth Bader Ginsburg:

May I ask you preliminarily, Mr. Keyes?

The Government takes the position that this statute, whatever it means, was intended to… with the… with the nation abroad in view, that the idea was not to insult our… our neighbors in the world community, so to recognize that they have the prerogative to say yes or no to somebody being sent there, being removed there, but that the statute was not intended to confer any benefit on the removable alien.

Jeffrey J. Keyes:

Your Honor, the… the statute, as structured, sets forth… Congress has set forth order with respect to the deportation process, has set forth, for example, the order in which countries should be chosen, the identity of those countries that should be chosen.

The… the statute is… does get at order in the deportation process, and if an alien is being removed to… in a situation where there is no government to receive the alien, where the alien is simply being expelled from the United States, the risk arises that the alien will bounce back to the United States, will simply be in international traffic with no country to receive the alien, and there’s nothing in the statute which would indicate that the interest of Congress in ordering the removal process is limited simply… limited simply to a concern about the sovereignty of nations of the other country.

William H. Rehnquist:

But you need more than that, don’t you?

Are you saying there’s no interest… indication that Congress was concerned with other than the subject that it was talking about?

But… but you need something affirmative to say that a statute confirms a right on a private individual.

Jeffrey J. Keyes:

Mr. Chief Justice, the… the… we are not contending that the… the statute invests a right on the individual.

What we are contending is that the statute was… as expressed in the statute has this acceptance requirement that would apply to the removal process.

Sandra Day O’Connor:

Well, but it is possible to read the statute, particularly part (E), the first series of subsections of it, as the Eighth Circuit did.

That is a possible reading of the statute and to find there is not, indeed, an acceptance requirement under many of those little subsections.

Jeffrey J. Keyes:

Your Honor, I would… I would suggest that–

Sandra Day O’Connor:

Or I should say clauses perhaps.

Jeffrey J. Keyes:

–Yes, yes.

I would… I would suggest that to… to give it that reading, one has to limit the view to the first six clauses.

Sandra Day O’Connor:

Yes.

Jeffrey J. Keyes:

However, the… I would suggest that that would… that would take subparagraph (E) out of… out of its context, and there are several very important… there’s important–

Sandra Day O’Connor:

Well, I… I’m not sure that’s right.

When I read the statute as a whole and went through all the possibilities there and got to (E), it read as though, at the end of the day, Congress did want to provide some place of removal for people in the absence of acceptance.

Jeffrey J. Keyes:

–Your Honor, I would… I would suggest that that… that is… that’s not the case for the following reasons, that first of all, the way (E) begins, it says, if an alien is not removed to a country under the previous subparagraphs.

Sandra Day O’Connor:

Right.

Jeffrey J. Keyes:

The first priority is… before that is country of subject, nationality, or citizenship where there is an acceptance requirement.

In moving to (E)–

Sandra Day O’Connor:

Well, obviously Congress prefers to have a country act with acceptance.

That… that’s understandable, but what (E) appeared, to me at least, to be was if all those things had been exhausted, we’re going to still allow removal under little subclause (i), (ii), (iii), (iv), and (vi).

Jeffrey J. Keyes:

–Your Honor, the… the… what (E) does is that it doesn’t change the removal process.

It just adds for the… for the executive branch, it adds additional countries, other countries, that they can remove to.

Antonin Scalia:

Well, but it doesn’t begin that way.

It doesn’t begin if an alien cannot be removed to a country under the previous subparagraphs.

It says, if an alien is not removed to a country under the previous subparagraphs.

And whether he is or not is subject to the discretion of the Attorney General.

None of those sentences or paragraphs requires removal to those countries.

Jeffrey J. Keyes:

Your Honor–

Antonin Scalia:

So when it says if he is not, then the… the Attorney General has these additional options.

I mean, you… you’d have a stronger argument if it… if it read cannot be removed, but it doesn’t.

Jeffrey J. Keyes:

–Your Honor, the… the… when it says, if an alien is not removed to a country under the previous subparagraphs, that… that is moving to give the Attorney General additional countries to remove to.

It doesn’t change the process.

Look, for example… I think we get further guidance on that point by looking at clause (vii) which is obviously a part of… of this subparagraph (E), which ends with the words, another country whose government will accept the alien into that country.

Another country whose government will accept the alien into that country.

What that… what that does is that it gives us… it references back to the first six clauses and reflects the fact that the acceptance requirement is always present.

Antonin Scalia:

Of course, well, I mean, that clause could… could be read either way.

Another country whose government will accept the alien is one way to read it, and another way to read it is another country whose government will accept the alien.

Jeffrey J. Keyes:

It is… it is–

Antonin Scalia:

And that’s… that’s the… that’s the ambiguity there.

Jeffrey J. Keyes:

–It… it does depend upon the emphasis that you give, but I would suggest that if we are going to… if we are going to read (E) to mean that what the Congress intended was that you’re going to have an acceptance requirement for removal under (D), step two, the subject, nation, or citizenship country, but then we’re going to move to (E) and we’re going to give you a list of other countries that are presumably less… or have a less closer connection to the alien than in (D).

And with respect to those countries, those ones that are just in clauses (i) through (vi), we’re not going to have any acceptance requirement.

But then we’re going to put it back in in clause (vii) if… when you have to go then to some other country to get acceptance.

Jeffrey J. Keyes:

I would suggest that that is not a… a sensible reading of the–

Stephen G. Breyer:

Do you know why?

Did you come across anything that explained why there was a change in language in that clause (vii) between the 1952 version and the present one?

The ’52 one said, to any country which is willing to accept such alien into its territory, and then (vii) said, another country whose government will accept the alien.

Jeffrey J. Keyes:

–I… I… we didn’t–

Stephen G. Breyer:

Do we know… is there anything?

Is that an accident, a drafting… just simply drafting style or something or–

Jeffrey J. Keyes:

–It… it… we didn’t find anything that explained why.

I would… I would suggest that it reinforces my point and that is–

Stephen G. Breyer:

–Yes, it does.

It helps you quite a lot that it says government, but it doesn’t… at the same time it doesn’t… it… it doesn’t help you in respect to whether (vii) applies to the first six.

It does help you in respect to if you win that point, that’s it because there’s no government.

Jeffrey J. Keyes:

–That’s… that… that is correct, Your Honor.

Stephen G. Breyer:

Otherwise, you could argue–

Jeffrey J. Keyes:

That is correct.

The… the… we… we did in the… there is in one of the amicus briefs that those… that gives the legislative history, there is a reference to the major report of the Judiciary Committee in connection with the ’96 legislation, which says that this whole section of the… of the INA is being… is restating the… the previous law.

So… so that’s what… that’s what we have.

David H. Souter:

One… one argument in… at least in my view, that would certainly help you in your reading of (E) is the interpretation that you put on (D).

And… and you and Justice Scalia, I… I think, have two very different interpretations of what (D) requires.

You’re saying that… that (D) does, in fact, require a… a… the… the country… if… if the Attorney General designates the… the country of citizenship, that there is a requirement in (D) that the… that the country accept.

Whereas, his earlier question that… that spoke of… of… and the issue under (E) is whether an alien is or is not removed as opposed to can or cannot be removed.

His earlier question indicates the… the possible reading that there is no acceptance requirement in (D).

And as I understand the Government’s argument, it is… it is this, that (D) requires the Attorney General to turn to the country of… of citizenship, but if the country of citizenship does not accept or does not respond, it is not the… the consequence is not that the Attorney General cannot deport to that country, but simply that he is no longer required to, that it is an act of discretion.

What is… what is your answer to that argument, that there is no absolute acceptance requirement, merely an acceptance requirement to maintain the Attorney General’s obligation to return him to that country?

Jeffrey J. Keyes:

Two reasons, Your Honor.

First of all, it’s the language of (D).

It says, remove to subject, national, or citizenship country unless the government of the country does not affirmatively inform about acceptance or… or–

David H. Souter:

Well, it says the Attorney General shall remove unless.

And their argument is if… if you don’t get the condition satisfied, i.e., acceptance, there’s no longer a mandate, i.e., shall.

It simply leaves it open, a matter of discretion.

Jeffrey J. Keyes:

–And… and I would… I would suggest that the… the consequence of the unless language should be that unless this happens, don’t do it.

But… but… so that would be my… my suggested reading of the language.

But the second reason, going to the structure of the statute, which I think reinforces that and… and is important, is that if it had been… if it had been Congress’ intent that if the Government couldn’t remove to the country of citizenship because it couldn’t get acceptance, that it could then move to step (E) and remove anyway to overcome that acceptance, Congress would not have gone about writing the statute the way that it did.

The way that it wrote the statute is that it provided in (E) for other countries that the… that the Attorney… Attorney General could remove to, and every one of those countries can be a different country than the country of citizenship by their definition.

It would… it would have been a very strange way for the… the Congress to have given the Attorney General the discretion to remove anyway, to make it contingent upon one of those countries in clauses (i) through (vi) to happen to be the same country as the country of subject, nationality, or citizenship.

Antonin Scalia:

What I think is very strange is the… is… is for you to read back up to all the other clauses, (i) through (vi), the phrase, whose government will accept the alien.

I mean, if… if acceptance is a condition for all of those preceding things, my goodness, that’s certainly not the way to make it clear, to tag it onto (vi) instead of putting it in the introduction or in a clause that comes after (i) through (vii) and goes out to the margin after that.

You… you want us to read back to (i) through (vi) whose government will accept the alien.

Jeffrey J. Keyes:

The… the… I think that the… the best way to approach the statute… and I think it… it can… it can shed light on… on your question… is that if we start with the premise that what removal is is the transfer of the alien from the Government of the United States to the government of the country of removal.

And that is what removal is.

So if we start with that premise, then it makes absolute sense here that there wouldn’t be at each place where the… the statute identifies a… a country, where the statute would have to say… make a specific reference to the acceptance requirement.

My point about reading the statute that way, in terms of its general condition, is that it explains how throughout the statute you would have the… the reference to acceptance in the context in which it appears, but you wouldn’t have to repeat it every place where you… where you referenced a country of removal.

Antonin Scalia:

So… so, as you read… as you read this statute, the United States can never send somebody back to a country that doesn’t want them.

Is that it?

Jeffrey J. Keyes:

It would… in… in this removal process, it does require acceptance from the country of removal.

Now… now, they–

Antonin Scalia:

Why… why would… why would Congress ever want to impose that categorical requirement?

Jeffrey J. Keyes:

–The… the reason why it… it would fit in with the… with the statute is that Congress has in this statute has expressed an interest in the orderly process of deportation.

If… if it… let’s take two examples, Your Honor.

If the… if the country of removal refuses, does not want to have… will… will not take the alien back… there is a government and they refuse… then the… the reason why it makes sense to have this acceptance requirement is that in all deportations, it will make it less likely that the deportee is going to be bounced around in international traffic and come back to the United States.

William H. Rehnquist:

Can the… can the alien challenge a decision by the Attorney General that, yes, a certain country has accepted him?

Jeffrey J. Keyes:

The… I… I… if there is a… if there was a wholly unreasonable claim by the Government that there was acceptance, they… not–

William H. Rehnquist:

So… so the alien can litigate that issue.

Jeffrey J. Keyes:

–I think that the alien can if the… if the Government were to take a position… let’s say in… in… in a… in… in this case the Government agrees, admits that there is no acceptance.

But let’s say that the Government took the position to say that we can… we can call anything acceptance and we can… we can ship you out of the United States with a wholly unreasonable definition of acceptance.

Then the alien should in that circumstance be able to have access to the courts to be able to challenge that… that decision.

John Paul Stevens:

It seems rather strange to me.

If you take him to the airport, he either gets off the plane or he doesn’t.

I don’t see why you litigate that.

You know whether they’ll accept him or not when you… when you deliver him.

Jeffrey J. Keyes:

Well, you… you should know that because that is the… the acceptance is the willing receipt of the… of the alien by the country of removal.

Stephen G. Breyer:

–What happened in China?

I mean, what… this all comes from the ’52 act, and it was a big issue then that we didn’t recognize communist China and they would take people to the border.

How… how did that work?

Were there… were there instances under the ’52 act where they just would take somebody to Macau or something and push him across the border, or what… what happened?

How did it work?

Jeffrey J. Keyes:

The… the instances we know about come from the… from the Tom Man case, which was decided by the Second Circuit in 1958.

And in that case, what the Government wanted to do was to take the alien to the border of the… of communist China and to see whether or not they could get him across the border.

And in the… and… and in construing this… this very provision in the language that it was in in 1952, Judge Learned Hand for the… for the court said that… that acceptance was required under step three for each of the subparts and that that would violate the statute.

We know of other instances, Your Honor, to answer the question, in terms of procedures where in… in the 1950’s, ’60’s, that the… what the Government would do would be to take the… remove the alien to Hong Kong and then there were situations where the Hong Kong authorities may or may not send that alien on to… on to China.

But there was… there has always been… every opinion from the… from the time this statute went into effect in 1952, up until the Eighth Circuit’s decision in Jama, has said that what this statute means at each of its steps is that acceptance is required.

Stephen G. Breyer:

Now, are there instances where we have deported people to places that they said, no, we won’t take him, and we have anyway?

Jeffrey J. Keyes:

We don’t… we don’t know of any, and the… and the Government has… has not cited–

Stephen G. Breyer:

Okay. Then another–

Antonin Scalia:

And you say there can’t be any under this law.

Jeffrey J. Keyes:

–We say there can’t be.

Antonin Scalia:

So that if some state opens its prisons and puts its criminals on a boat and sends them to the United States, as has happened in the past, your interpretation of this statute is that Congress has forbidden the President from shipping these criminals back where they came from, so long as the country that expelled them doesn’t want these criminals back.

Is that–

Jeffrey J. Keyes:

No, Your Honor.

Antonin Scalia:

–What… what are you saying?

Jeffrey J. Keyes:

The reason for that is that this statute deals with the removal of aliens who have been through removal proceedings.

In that situation, presumably what would happen is that those… those aliens would be excluded.

They would be subject to… probably to expedited removal under a different statute.

We’re dealing here with aliens who have been admitted into the United States.

Anthony M. Kennedy:

Is the statute so limited?

Jeffrey J. Keyes:

It… it… yes, it does.

The… the statute does.

It starts in… in (2), 1231(b)(2)(B), other aliens, and (1) is arriving aliens who are in removal proceedings.

Ruth Bader Ginsburg:

The United States has turned boats back.

The most notorious case was in World War… before World War II–

Jeffrey J. Keyes:

Yes.

Ruth Bader Ginsburg:

–before we entered World War II.

Jeffrey J. Keyes:

It… it has.

And… and given the fact that this statute was originally passed in 1952, in 1952 there was a… we know from the legislative history, there was enormous concern about the fact that the… the communist countries would not receive back their citizens.

So the concern was that we had communist agents or aliens in the United States and we couldn’t deport them.

What Congress did in this statute was that… in 1952 is that it… it didn’t change the acceptance requirement, but what it did do was it expanded the list of countries to which the Government could deport.

Those are the countries we now have–

Stephen G. Breyer:

–But what’s bothering me partly in this case is it’s being argued on the ground that this is like a country that says we don’t want him.

In fact, this is a country that hasn’t said we don’t want him.

It’s a country that hasn’t said anything.

It’s not a country perhaps.

And… and that’s what… really the issue is whether or not a place without a government is a place where you can send him at all.

Jeffrey J. Keyes:

–Yes.

Stephen G. Breyer:

And… and maybe this is all evidentiary when they changed the word… add the word government, that the word country throughout is simply assuming a place that has an organized government.

Is there… is that so?

Is there anything you want to say about that?

Jeffrey J. Keyes:

There is.

Yes, it… it does mean… that is a separate reason why the… under… under (E) the petitioner cannot be removed to Somalia because there is… it’s not a country as that should be properly defined in the statute.

And… and let me give you, I think, a good history on that.

The Board of Immigration Appeals itself in… in 1985 in the Linnas case, specifically addressing in (E) the term country, said that to be a country under this statute, there had to be two things: a territory and there had to be a functioning government that exercised sovereignty over its people.

Stephen G. Breyer:

All right.

Now, the word country probably appears in the immigration statute in the context of deportation since the first statute that provided it.

So have you done any work on that?

I… I hate to sort of have to look that up for the first time, but the… the… is there any work that you can report in respect to that word country?

There never under that… the easiest thing for you would be if… if this word country… there never has been under a statute that used the word country a deportation to a place that had no organized government.

Jeffrey J. Keyes:

Well, I–

Stephen G. Breyer:

If you could affirm that that’s so, then that would be very strong for you.

But maybe that isn’t so.

Jeffrey J. Keyes:

–I… I don’t… I don’t know if… if that is so.

I can point to and we have pointed to in… in the briefs to a whole series of cases.

Jeffrey J. Keyes:

I… I mentioned the BIA decision, but there’s a whole series of cases in the… in the 1950’s, 1960’s which said that country had to have a functioning government.

I’ll… I’ll give you one… one good example and that is the Ying case where… where the court, circuit court, said that it was dealing with whether Hong Kong could be a… a country.

And it said Hong Kong can be because it has the following characteristics.

It has a legislative body.

It has… it has all the characteristics of a political organization.

Ruth Bader Ginsburg:

I thought the Government said you… you didn’t raise this question below, that you didn’t argue that Somalia wasn’t a country.

Jeffrey J. Keyes:

Your Honor, it… it… this is… this is not a new claim or a new issue.

It is an argument on the issue that is presented, which is whether petitioner can be removed to the country of birth under (E) when there is no functioning government that can either object or accept him.

And since there is no country, he can’t be.

William H. Rehnquist:

Well, but that doesn’t seem to be the question you actually presented in your petition for certiorari.

Jeffrey J. Keyes:

Well, Your Honor, I would… I would quote the… the Government’s phrasing of the question in… in–

William H. Rehnquist:

Well, but you’re… you’re bound by the question that you presented, and it is whether the Attorney General can remove an alien to one of the countries designated in the statute without obtaining that country’s acceptance of the alien prior to removal.

Now that doesn’t say anything about the absence of a government.

Jeffrey J. Keyes:

–Your Honor, it… it doesn’t specifically say–

William H. Rehnquist:

It doesn’t say specifically or generally.

Jeffrey J. Keyes:

–It… it… what I would say is that the… that if you go… if there is no government in that country, then there can be no acceptance.

So we must refer back to that.

I would also cite the fact, Your Honor, that this issue was specifically addressed by the… by both parties in the district court.

It… and the… in the dissenting opinion in the Eighth Circuit, the… the dissent specifically raised this as… as a matter in terms of–

William H. Rehnquist:

Was it addressed by the majority opinion?

Jeffrey J. Keyes:

–It was not addressed by the majority opinion, no, Your Honor.

I would… I would… if there are no further questions at this time, I’d like to save the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Keyes.

Mr. Stewart, we’ll hear from you.

Malcolm L. Stewart:

Mr. Chief Justice, and may it please the Court:

The plain language of 8 U.S.C. 1231(b)(2)(E)(iv) authorizes removal of an alien to his country of birth, and it is undisputed that petitioner was born in Somalia.

By its terms the statutory authorization is not conditioned on acceptance by the receiving country’s government.

Antonin Scalia:

Why… why did you narrow the question presented in your brief if you’re willing to take that… that much more categorical position and much more important position for the Government?

When… the… the question presented, as you describe it in your brief, is whether immigration officials may remove petitioner to his country of birth when that country lacks a functioning central government that is able either to accept or object to petitioner’s… that’s a much narrower question–

Malcolm L. Stewart:

I mean–

Antonin Scalia:

–than… than the one presented by petitioner.

Malcolm L. Stewart:

–We… we narrowed it in that way because we feel that that’s the only question that is squarely before this Court.

That is, the Court–

Antonin Scalia:

That’s all you want us to decide?

Malcolm L. Stewart:

–Well, we’ve also indicated that the… the logical thrust of most of our arguments is to the effect that an individual could be removed to an otherwise permissible country, notwithstanding the lack of acceptance of a functioning central government.

Antonin Scalia:

Well, I… I don’t think it’s the logical thrust necessarily, and if we… if we did it the way your question presented suggests, we’re deciding this case only for people who are going to be deported to Somalia or… what other areas of the world have no functioning government?

Malcolm L. Stewart:

Somalia is the only one, and–

Antonin Scalia:

That’s… I wouldn’t have voted to take the case.

Stephen G. Breyer:

So it’s much narrower.

Malcolm L. Stewart:

–Well, obviously we… we opposed the certiorari petition.

So we’re not contending that the practical importance of the question is such that it would necessarily justify the Court’s expenditure of its resources.

There was a square circuit conflict–

Sandra Day O’Connor:

Yes, but it… it’s very odd when the petitioner’s question was broader and turned on whether there was acceptance or not.

Malcolm L. Stewart:

–Well, I think our… the reason… one of the reasons we framed the question as we did is that petitioner’s last argument in the brief was, as we read it, to the effect that whatever the text of the statute might say, there has been an established understanding over the decades that removal is not permitted in the absence of acceptance by the receiving country’s government.

And part of the point we wanted to make is we don’t think an understanding of that sort could trump the test… the text.

But even if the Court decided that the established understanding was so pervasive that an extratextual limitation on removal authority should be read in, the understanding could be thought to exist only in cases where there was a functioning central government that resisted the alien’s return.

Stephen G. Breyer:

As I… as I understand it, following up a bit on Justice Scalia, the question presented is whether he can remove an alien to one of the countries designated without obtaining that country’s acceptance.

Okay?

Malcolm L. Stewart:

Without–

Stephen G. Breyer:

Now, one possible… prior… of the alien prior to removal.

That’s… I’m just reading it–

Malcolm L. Stewart:

–Although–

Stephen G. Breyer:

–from their cert petition.

Malcolm L. Stewart:

–I do… I think you left out one word that is… is crucial, that is, his position necessarily turns on the proposition that we have to get acceptance not simply from the country, but from the government of that country.

Stephen G. Breyer:

But what the cert petition says, without obtaining that country’s acceptance of the alien.

Now, I grant you it’s sort of a hidden argument there, but it’s mentioned or whatever.

Is… one reason the answer to that question is no is because where that country does not have a functioning government, it is not a country within the meaning of country as used in this statute.

Malcolm L. Stewart:

I mean, we would submit–

Stephen G. Breyer:

Now, that’s… that’s an answer no to the question presented for a very narrow reason that does not get us involved in anything other than Somalia.

Is there… I mean, maybe we shouldn’t reach it because it wasn’t argued all that much, but it seemed to me just another argument being advanced in favor of their position.

Malcolm L. Stewart:

–Well, first, we would… we would submit that the question presented presupposes that Somalia is a country.

But leaving that question aside, I think there are a lot of good reasons that even if the Court felt this issue was properly before it, it should hold that Somalia is a country.

If you go to the Department of State web site, Somalia is listed as an independent state.

It continues to be a member state in the United Nations, notwithstanding the absence of a functioning central government.

If Somalia were not regarded as a country or a state, by reason of the absence of a government, then presumably all people who were formerly Somali nationals would now be rendered stateless, and that’s a result that international law generally–

Stephen G. Breyer:

So you’re not saying you can dump people in Antarctica or possibly send them to the moon.

Malcolm L. Stewart:

–We’re saying that… we’re saying, first, that Antarctica and Somalia are countries.

It’s exceedingly–

Stephen G. Breyer:

Antarctica is a country?

So we could take all these people, send them to Antarctica.

They’ll live with the penguins?

Is–

Malcolm L. Stewart:

–It’s extremely unlikely that… that the… the text of a statute could ever be satisfied because the permitted removal countries are countries such as the country in which–

Antonin Scalia:

If they were born there–

Malcolm L. Stewart:

–Exactly.

Antonin Scalia:

–raised by penguins, send them–

[Laughter]

Malcolm L. Stewart:

So in any event, we… we think that Somalia is a country.

It continues to be regarded as such, notwithstanding the current lack of existence of a functioning central government.

There is a portion of Somaliland… of Somalia known as Somaliland that has set up its own government and characterizes itself as a separate country, but the United States Government has not recognized that claim, nor has any other country.

So Somalia for these purposes remains intact.

I’d like to focus again on the text of the relevant statutory provisions.

Ruth Bader Ginsburg:

Before you do so, could you tell me what was the outcome in that Southern District of Texas case which relied on this decision, the Eighth Circuit’s decision here, to send someone to Ethiopia without consent?

Malcolm L. Stewart:

I don’t know what ultimately happened to the alien.

As the case is described in the amicus brief, the alien was flown to Ethiopia.

He was refused at the border, and then he was flown back.

And I think that would be consistent with our representation that we have not historically attempted to repatriate aliens over the objection of a functioning central government.

That is–

Ruth Bader Ginsburg:

Is… is there anything to it other than the practical objection that when you get the person there, the country won’t accept him, so we sent him… be left with you–

Malcolm L. Stewart:

–I think it–

Ruth Bader Ginsburg:

–unless we dump him in the sea.

Malcolm L. Stewart:

–it’s a measure of inconvenience if he’s flown there and back, but we would say that even if the Court held that the statute requires acceptance by the receiving country’s government, it would not be necessary for us to obtain a prior assurance of acceptance.

Rather, it would still be a permissible option for us to fly the alien to the border, and if the people there, having been told who he is, let in him, we would say that falls–

William H. Rehnquist:

You don’t fly him to the border.

You fly him to an airport which usually isn’t on the border.

Malcolm L. Stewart:

–I’m… I’m sorry.

Fly him to the port of entry at which he would be presented to the… the immigration or customs officials in the relevant foreign country, and if they acceded to his entry, having been apprised of who he was, we would say that constitutes acceptance by the receiving country’s government.

Stephen G. Breyer:

–But that… they can win on that one because it doesn’t say anything about prior in (vii).

Malcolm L. Stewart:

Right.

I mean, here… here the barrier… in a sense, the barrier is not so much acceptance.

That is, as a practical matter, in order to accomplish removal of an alien to Somalia, we’re going to put him on a plane.

He is going to be flown at an airport in Somalia, and there will be people at the airport with guns presumably who exercise de facto control over who gets in and who is not allowed to deplane.

And if those people are not willing to let Mr. Jama into the country, he’ll be flown back and we won’t be able to accomplish repatriation.

Antonin Scalia:

Whether they are… whether they are a government or not.

Malcolm L. Stewart:

The… the barrier… the potential barrier is not that there won’t be acceptance, that there… but that there won’t be acceptance–

Antonin Scalia:

People with guns. Right.

Malcolm L. Stewart:

–there won’t be acceptance by people that we would regard as the government of Somalia.

And… and I think there is a significant point here in terms of the foreign relations of the United States.

That is, if the reconciliation process goes as we hope and conditions in Somalia become more stable, the… the people who purport to exercise governmental authority gain control over the… the territory and the consent of the population, at a certain point the State Department will have to make a decision, have things progressed far enough that we can characterize this as the government of Somalia.

And that determination shouldn’t be skewed by a judicial ruling that until the State Department makes that determination, repatriation of aliens to that country will be prohibited.

If I could turn to the… the text of the statute, the provision on which we rely, of course, is… is subsection (E)(iv) and that’s at page 4 of the Government’s brief, and it’s headed additional removal countries.

It says, if an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General… now the Secretary of Homeland Security… shall remove the alien to any of the following countries.

And Roman (iv) is the country in which the alien was born.

By its terms, that gives unqualified approval to removal to the country of birth.

Neither the introductory language nor subsection… or clause (iv) itself conditions that authorization on acceptance by the receiving country’s government.

And it’s also–

David H. Souter:

Mr. Stewart, may I interrupt you?

Oh, I’m… may I interrupt you and ask… ask this question?

You’re right.

Textually there’s… there’s nothing in (iv) that… that has the condition of… of prior approval.

David H. Souter:

The argument… one argument is made is that because of the substantial overlap of… of the subsections in (E) with the country of… of nationality or citizenship in (D), that if you do not recognize a… a requirement of acceptance for the (E) categories, basically you’re going to do an end run around (D).

The Government’s answer to that argument, as I understand it, as… as I tried to… to put it in a question to your… your friend, is that there is no absolute requirement of acceptance in (D).

There is simply a… a… the Attorney General’s mandate to send the person to a… a country of citizenship is… is subject to that.

But if the country will not accept, the Attorney General still has discretion to send him to that country.

There is one answer to that that your brother did not get into, and I… I want to raise it.

As I understand it, the House report for the… what was it… the ’96 act, the current statute anyway.

The House report indicated that there was no intent to change the substance of the provisions dealt with from what they had been under the prior statute.

And under the prior statute, which is set out on… on page 1a of the petitioner’s brief, it seems to me that it is very clear that there was an absolute requirement of acceptance for the Attorney General to act under the predecessor language to what is now subsection (D).

If you look down to within the… the three lines from the… from the bottom of… of page 1a, which refers to that, there… there seems to be a clear condition: if such country is willing to accept him into its territory.

Now, if I’m reading the old law right and the House report does reflect or should be taken by us in interpretation to reflect the intent of Congress, then don’t we have to say that the Attorney General’s authority, not merely mandate, but authority, under (D) requires acceptance?

And therefore, if we take your view, we would, in effect, allow an end run around a condition indeed because the Attorney General could simply say, okay, I’m going to go to little (iv) under (E).

I’m going to find the country of the birth.

I don’t have to get acceptance.

It happens to be the same country as citizenship.

But… but in he goes, or at least up to the border he goes.

What’s your answer to that argument?

Malcolm L. Stewart:

–Well, let me… let me turn the Court first to page 3 of the Government’s brief that has the text of current subsection (D), and I think that maybe that will help me to explain it best because the way we would formulate our interpretation of subsection (D) is very slightly different from the way that… that you characterized it earlier.

Subsection (D) says: if an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country fails to give its consent.

And our interpretation of the purpose of subsection (D) is it expresses a strong preference for removal to the country of nationality, assuming that no designation has been made.

But Congress recognized that to make that an absolute requirement, even in circumstances where there was no acceptance, would embroil the executive branch into foreign policy confrontations because essentially even when the executive branch officials believed it would be an unwarranted affront to foreign states to try to remove in the face of foreign resistance, the statute, without the exception, would be telling the Attorney General you have to do that.

And so Congress, understandably, enacted an… an exception to that requirement, and it says if there is no acceptance, the Attorney General doesn’t have to remove.

Now, we would… we would–

David H. Souter:

So if… if there is acceptance, he does have to remove.

If there is no acceptance, he has discretion.

Malcolm L. Stewart:

–We… we would say he has discretion, but he… but he has–

John Paul Stevens:

That doesn’t make… can I interrupt here?

I want to ask the question I started before.

That doesn’t make any sense.

If you read this as a mandatory requirement, the Attorney General shall do it, and if you assume an existing government… now, you narrowed the question.

So I’m not talking about the question.

John Paul Stevens:

If there’s an existing government, he cannot command the other government to accept the alien.

The general practice among nations was they would not… the other nation has an obligation to accept people back.

But if they won’t do it, we can’t force them to take the person back.

Malcolm L. Stewart:

–I… I agree that that is generally the international practice.

Now, I would… I would not categorically promise–

John Paul Stevens:

How… how could… say you send a person back to Great Britain and they say we’re not going to take him.

How are you… what… what can… what could the Attorney General possibly do?

Malcolm L. Stewart:

–I think as a practical matter in that context, it would be impossible.

But to take another hypothetical situation–

John Paul Stevens:

So the word shall cannot mean shall because he… he cannot in every case do it.

Malcolm L. Stewart:

–Well, it says he shall do it unless–

John Paul Stevens:

Unless there’s acceptance.

Malcolm L. Stewart:

–Right.

Unless there’s acceptance.

David H. Souter:

I guess you could say that he shall do everything he possibly can, but his mandate to do that evaporates if there’s no acceptance.

Malcolm L. Stewart:

That’s correct.

Antonin Scalia:

Wait a minute.

We’re… we’re–

Stephen G. Breyer:

Put the two questions–

Antonin Scalia:

–We’re going too far.

It doesn’t just say if they refuse to accept.

If they don’t respond within 30 days.

So it may well be that you… that you can proceed to (E) with respect to a… a country that simply has not responded.

Malcolm L. Stewart:

That… that’s–

Antonin Scalia:

It has an inefficient ministry of state, and… and the guy arrives.

They say, oh, we’re… we’re delighted to have this fellow back.

Our response got lost in the mail or something.

There’s no… no reason you can’t proceed to (E) just because of the existence of (D).

Malcolm L. Stewart:

–That… that’s correct.

Stephen G. Breyer:

–But now, putting those three questions together, it seemed to me what you’re saying it is possible to read the statute the way you’re saying.

Stephen G. Breyer:

It is also possible to read the statute the opposite.

And the brief that I found very helpful on this was this Ali Ali brief where everything is set out really quite parallel.

You get every version of the statute right in front of you.

And as I read that, it… you look at the ’52 version… and I think it’s clearer on this point, and it’s against you insofar as it’s clearer.

But then, in addition, you have four circuit courts of appeals, including a decision by Learned Hand, all of whom say that Justice Souter’s suggestion there is what the statute means, and there’s nothing to the contrary.

And then after that, Congress reenacts those same statutes with all the little bits and I think some unclarifying changes in language, but they write in the report, we don’t mean any substantive change by this.

Antonin Scalia:

I think the House wrote that in the report.

Right?

Was that in the Senate report?

Malcolm L. Stewart:

I don’t remember.

Antonin Scalia:

Did the President know about–

David H. Souter:

It… it was the House report.

Stephen G. Breyer:

Some people actually read those reports and feel they are a clue to what Congress is trying to get at.

And here, if that is a clue, the clue says that there is to be no substantive change from a provision that was unanimously interpreted by four circuits, including Learned Hand, to be with the other side on this.

Malcolm L. Stewart:

Well, first–

Stephen G. Breyer:

So I’m interested–

Malcolm L. Stewart:

–Well, first, there were only two court of appeals decisions that we’ve been pointed to in which the attempt remove an alien was actually thwarted on the basis that there had been a no acceptance by the receiving country’s government.

Second, Learned Hand was unquestionably a distinguished judge, but if he had been infallible, then presumably he would have been on this Court.

[Laughter]

And I think… I think–

Stephen G. Breyer:

–That is an amazing non sequitur.

Antonin Scalia:

–Good point.

Good point.

[Laughter]

David H. Souter:

If you believe that, Mr. Stewart–

Malcolm L. Stewart:

–And I think… and I think… but–

Antonin Scalia:

You… you mean if he had been on this Court, he would have been infallible.

[Laughter]

Malcolm L. Stewart:

–Exactly, exactly, exactly, exactly.

The… the point is for this Court to treat as any lower court opinion as an authoritative statement of what the law means or meant would be an inversion of our judicial–

David H. Souter:

–Okay.

Let’s… let’s erase Learned Hand–

John Paul Stevens:

Let me just… let me get an answer to my question.

In your… under your reading of the statute, the mandatory… it imposes a mandatory duty on the Attorney General which he may not be able to perform because he may not be able to repatriate the alien unless the other country will accept him.

Malcolm L. Stewart:

–No.

Our… our point is that the statute would have raised that concern if the exception were not there.

That is, if the statute said in terms if there is no removal to the country designated, the Attorney General shall remove the alien to his country of citizenship or nationality and didn’t include an exception, then the Attorney General would be placed in a situation, at least potentially, where he was forced… he felt himself forced by law to attempt repatriation even though he knew that the government of that country didn’t accept the alien’s return.

And it was to prevent that sort of foreign policy confrontation that the exception was written in.

The exception was, by its terms, an exception to a mandate.

It was not intended to be–

John Paul Stevens:

Well, then it’s an exception to subparagraph (iv).

Malcolm L. Stewart:

–It’s an exception to subparagraph (iv)… to subparagraph–

John Paul Stevens:

So you are reading the language in subparagraph (vii) as a… an exception to subparagraph (iv).

Malcolm L. Stewart:

–No.

I’m reading the language of subsection (D).

I’m… I’m not at (E).

I’m at subsection (D).

John Paul Stevens:

I’m at (E).

Malcolm L. Stewart:

Okay.

John Paul Stevens:

And I’m saying if you read (E) your way, subsection (iv) is a mandatory command to the Attorney General that he may not be able to carry out unless he can comply with subsection (vii).

Malcolm L. Stewart:

We’re not saying that subsection (E)(iv) is a mandate that the Attorney General or the Secretary must remove to–

John Paul Stevens:

It says shall remove.

Malcolm L. Stewart:

–It says shall remove to one of the following countries, but it clearly is not intended to be a mandate because the introductory–

John Paul Stevens:

He can choose one of them.

Malcolm L. Stewart:

–the introductory… he doesn’t have to choose one because the introductory language of Roman (vii) says, if impracticable, inadvisable, or impossible to remove the alien, dot, dot, dot.

John Paul Stevens:

Right.

Malcolm L. Stewart:

So it specifically contemplates the possibility that situations may arise in which it will not be practicable, possible, or advisable to remove the alien to any of the foregoing countries.

And certainly one–

John Paul Stevens:

And wouldn’t it always be impossible if… if the… if the other country will not accept the alien?

Malcolm L. Stewart:

–I think… I mean, to… to give a slight variance on the hypothetical that Justice Scalia posed, if a future–

John Paul Stevens:

I’d rather have an answer to my question.

Malcolm L. Stewart:

–I think it would not always be impossible.

If, for instance, a future president of Mexico embarked on an aggressive program of encouraging aliens… encouraging Mexican nationals to leave that country illegally, and then the Mexican government refused to take them back, I think it would at least be possible.

It would be an option the President would want to consider to repatriate those people over the objection of the Mexican government.

And if the President were attempting to negotiate a satisfactory resolution to that very hypothetical crisis, we wouldn’t want him to be hamstrung by a statutory barrier to his doing that.

So it makes perfect sense to say, on the one hand, if there is no acceptance by the receiving country’s government, the Secretary will never be required to remove to that country because that would enmesh the executive branch in an international confrontation against its will.

It’s not at all inconsistent to say, nevertheless, if the Secretary believes that repatriation without acceptance can be done, consistent with the foreign relations objectives of the… the United States Government, it’s a statutory option.

As a practical matter–

David H. Souter:

–May… may I go back to, let’s say, the… the nub, the narrow nub of… of my earlier question, and that is this.

The predecessor language to what is now subsection (D), as I read it, clearly required the approval of the country if there was to be a removal to the country, a repatriation to the country.

The House report says we don’t intend to make any change in the substantive law.

If we accept the House report, then we’ve… we’re going to say that the proper reading of (D) is not your reading, but the reading that says the Attorney General cannot act under (D) unless there is, in fact, an… an acceptance by the country.

And if that is true, then your reading of Roman (iv) in (E) allows you to make an end run around that condition, and that would be a good reason for interpreting all of (E) to require agreement and acceptance by the country.

What is your response to that narrow argument?

Malcolm L. Stewart:

–I guess we’d have two responses.

The first is we would not agree with the view that the predecessor language would forbid removal to the country of nationality absent acceptance because what the statute said was that if the government of the relevant foreign country doesn’t accept or doesn’t advise the Attorney General of what its stance is, then about five or six lines down on page 2a, it says, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either… and then there’s the same series of countries, and one of those is the country in which the alien was born.

David H. Souter:

So you’re saying that the predecessor language can be read the same way, you say, (D) can be read now.

Malcolm L. Stewart:

That’s correct.

David H. Souter:

Okay.

Malcolm L. Stewart:

I guess the other point we would make is–

Ruth Bader Ginsburg:

Then you… you think Judge Reavley, who was sitting on the Ninth Circuit at the time and dissented in the Ali Ali case, that he was dead wrong when he said the prior statute did condition willing acceptance for all countries to which aliens could be deported.

Malcolm L. Stewart:

–Yes.

We would… we would disagree with that statement.

Ruth Bader Ginsburg:

He thinks… his dissent turns on a difference between the current statute and the prior statute.

Malcolm L. Stewart:

Yes.

We would disagree that that was the appropriate result under the prior statute.

The… the other thing we would say about this point is that if we are otherwise correct about subsection (E)(iv), that is, if as a general matter, subsection (E)(iv) says an alien may be removed to the country of his birth whether or not there was acceptance, then it would make no sense to say but you can’t do it if that is also his country of current nationality or citizenship because removal to the country of… the current… the country of current nationality or citizenship is a preferred country of removal.

That’s so not only the… under the statutory scheme, but it’s also the country that under international law has an obligation–

Antonin Scalia:

I haven’t followed you.

Would you say… make that argument again?

Malcolm L. Stewart:

–Well, I think petitioner’s reliance on subsection (D) is to the effect that however you would otherwise read subsection (E), subsection (D) deals specifically with removal to the country of nationality or citizenship, and if you don’t meet the prerequisites for removal to that country under (D), then you can’t do an end run by resorting to (E).

And I’m saying if that works at all, it could work only when (E) is invoked to authorize removal to the country of current nationality or citizenship.

It… (D) couldn’t have any negative implications if we were attempting to remove somebody to Somalia because he was born there even though he was currently a national or citizen of a different country.

Antonin Scalia:

That’s… that’s not one of the choices under (E).

It doesn’t… (i) through (vii) don’t include the state of nationality.

Malcolm L. Stewart:

They… they don’t include that, but as a practical matter, I think the state of nationality is… is always or virtually always going to be covered because they include country of birth, country from which the alien departed to enter the United States, country in which he previously resided, country of… that’s under the sovereignty of… that exercises sovereignty over the country in which he was born.

One reason for… possible reason for parsing it the way Congress did in (E) is that sometimes the reason that a foreign government doesn’t give acceptance may be that the foreign government disputes our contention that this individual is a national of its country, and in order to avoid a recapitulation of that dispute at the subsection (E) stage, Congress might, at least, have though (E) is going to turn on objective factors, factors that are unlikely to be the subject of dispute, and not on the potentially contested question of what country is the… the alien’s current country of nationality.

The… the other thing I’d like to say about the… the two policy justifications that petitioner has given.

The one is that this… his reading of the statute is necessary in order to prevent the… this Government from being entangled in foreign confrontations.

And… and our view is that the executive branch is well equipped to prevent that from happening.

That is, so long as the statute doesn’t require us to attempt repatriation over the objection of another foreign government, the executive branch is… can and will exercise discretion to attempt that course of action only when we believe that it’s consonant with the foreign policy goals of the… the United States.

The other policy objection to our reading that petitioner advances is that places without functioning central governments are likely to be dangerous and that Congress would have wanted to prohibit removal to an… a country where the alien would face hardships.

And we don’t attempt to minimize the potential for hardship if an alien is removed to Somalia, but there is a network of Federal statutory provisions that specifically address the question of resistance to removal based on the potential for harm in the receiving country.

And if petitioner can’t qualify under any of those, then it’s unlikely that Congress would have intended the absence of a functioning central government to serve as a sort of prophylactic or surrogate for dangerous… dangerousness.

And it’s worth noting in that respect that the Secretary of Homeland Security currently administers the temporary protected status program which covers Somalia.

It contains broad protections for removal of aliens there, but petitioner is ineligible for relief under that provision because of his criminal conviction.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Stewart.

Mr. Keyes, you have 3 minutes remaining.

Jeffrey J. Keyes:

I would like to respond by pointing out that on the… on the point that Justice Souter raised with respect to the language of the statute prior to 1996, my… my brother counsel did not quote the most important part of the statute that was in effect at that time.

It’s set forth on… on 6a of the brief for petitioner.

And the critical part says, thereupon deportation of such alien shall be directed to any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory.

That same language did not just appear in the statute just prior to 1996.

That was the language that was in the statute in 1952 when it was first passed, and that can be found on page 1a to 1b of… of our brief.

I would also like to point out that we can… in terms of… of interpreting this statute, it’s also helpful to look at other statutes that were passed in 1996, specifically in the alien terrorist statute where the Government is… gets to remove someone who’s been classified as an alien… alien terrorist.

That statute, which is 8 U.S.C. 1537(b), starting on page 8a of our brief, says specifically that an alien terrorist shall be removed to a country whose government is willing to accept that alien.

I would submit that this, if in fact, Congress is going to have… if we’re going to have this removal requirement applies clearly to alien terrorists, then certainly this demonstrates that this has… this requirement has always been part of that statute.

And in 1996 Congress had before it those consistent interpretations.

Congress also had before it in 1996 the fact that tens of thousands of aliens could not be deported over the years to countries that would not accept them.

And in 1996, it restated the statute, having those facts and also the consistent judicial history which interpreted the statute to always require acceptance.

Jeffrey J. Keyes:

As a result of that, we could apply the principle that there was no watchdog barking in the night.

Thank you.

William H. Rehnquist:

Thank you, Mr. Keyes.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.