Ali v. AshcroftAli v. Ashcroft
Nicholas P. Gellert, Perkins Coie LLP, Seattle, Washington, for the petitioners-appellees.
Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV 02-2304 MJP.
OPINION
TASHIMA, Circuit Judge.
The question we must answer is whether the United States can remove aliens to Somalia, a country that does not have a functioning government to accept them. In a well-reasoned opinion, the district court found that it cannot. See Ali v. Ashcroft, 213 F.R.D. 390 (W.D.Wash.2003). We agree with the district court and therefore affirm. We have jurisdiction pursuant to
Tom Ridge, Secretary of the Department of Homeland Security, the Bureau of Immigration and Customs Enforcement, and officials of the former Immigration and Naturalization Service (“INS“)1 (collectively, the “government“) appeal the district court‘s order granting a petition for a writ of habeas corpus. Petitioners-Appellees, natives and citizens of Somalia, sought an order enjoining the INS from removing them to Somalia because there is no government in Somalia to accept them. Petitioners also sought certification of a nationwide habeas and declaratory class composed of all persons in the United States who are subject to orders of removal to Somalia. The district court granted a permanent injunction and the motion for class certification. The court ordered the INS not to remove any person in the nationwide class to Somalia and ordered the release of three of the named petitioners.
There are four named petitioners on appeal: Yusuf Ali Ali, Mohamed Aweys, Mohamed Hussein Hundiye, and Gama Kalif Mohamud. All four were ordered removed from the United States on various dates in 2000 and 2001, but each had been released from INS custody because removal to Somalia “was not likely to occur in the reasonably foreseeable future.” Ali, 213 F.R.D. at 397. Mohamud was taken back into custody in June 2000 for alleged violations of the conditions of his release. The other three petitioners were re-detained in November 2002 because “the local District Director‘s office was informed that plans were underway for [their] imminent removal to Somalia.” Id.
In response to their renewed detention, Petitioners filed a petition for writ of habeas corpus under
Petitioners then filed an amended habeas petition, raising the issue on behalf of themselves and a nationwide class. In December 2002, the district court granted Petitioners’ motion for a temporary restraining order on behalf of the nationwide class. After hearing oral argument, the court orally granted a preliminary injunction and certified a nationwide class. Following further briefing, the court declared the injunction permanent. The government filed a timely notice of appeal.
STANDARD OF REVIEW
The district court‘s decision to grant a petition for writ of habeas corpus filed pursuant to
DISCUSSION
We first address the government‘s challenges to the district court‘s jurisdiction. Second, we turn to the government‘s argument that the district court erroneously concluded that
I. District Court Jurisdiction over Habeas Petition
A. Administrative Exhaustion
The government argues that Petitioners failed to exhaust their administrative remedies as required by
A prudential exhaustion requirement may also be applied where agency expertise requires the agency to develop a proper record, relaxation of the exhaustion requirement would encourage deliberate bypass of the administrative scheme, and administrative review would allow the agency to correct its own mistakes. El Rescate, 959 F.2d at 747. Each of the factors involved in prudential exhaustion weighs against applying a prudential exhaustion requirement here. Further development of the record is unnecessary because Petitioners have raised a purely legal question. Moreover, the INS’ position — that it is statutorily authorized to remove Petitioners to a country that cannot accept them — is set, making it likely that recourse to administrative remedies would be futile. See id. at 747-48 (stating that it was unrealistic to require the plaintiffs to exhaust their administrative remedies where the Board of Immigration Appeals had already announced and reaffirmed its policy); see also Castillo-Villagra v. INS, 972 F.2d 1017, 1024 (9th Cir.1992) (concluding that prudential exhaustion did not apply where the INS had already taken the challenged position in a number of similar cases). Failure to exhaust administrative remedies does not bar judicial review here.
B. 8 U.S.C. § 1252(g)
Under
The government takes issue with the district court‘s finding that Petitioners raise a purely legal question and thus do not challenge the Attorney General‘s discretionary decision to execute their removal. See id. at 398. We reject this argument. The issue Petitioners raise is the legal question of whether
The government argues that
The Supreme Court‘s reasoning in several cases decided after Magana-Pizano supports this interpretation. First, there is no clear statement in
Second, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), where the petitioner did not seek review of the Attorney General‘s exercise of discretion, but instead challenged the Attorney General‘s authority under
Having concluded that the district court properly exercised jurisdiction over Petitioners’ habeas petition, we now turn to the central issue — the Attorney General‘s statutory authority to remove Petitioners to Somalia.
II. Removal under 8 U.S.C. § 1231(b)(2)
[t]he Attorney General may disregard a designation under subparagraph (A)(i) if —
(i) the alien fails to designate a country promptly;
(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;
(iii) the government of the country is not willing to accept the alien into the country; or
(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.
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 —
(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or
(ii) is not willing to accept the alien into the country.
If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.
(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.
(vi) The country in which the alien‘s birthplace is located when the alien is ordered removed.
(vii) 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 into that country.
A. Statutory Construction
The government argues that the plain language of
First, to read
in a situation where a government has actually denied acceptance of a removable person, a person could be airdropped surreptitiously into that same country if it met the requirements of one of the subparts.... The only logical interpretation of the plain meaning that gives effect to all sections of the statute is one that requires government acceptance from “additional” countries listed in
§ 1231(b)(2)(E)(i-vi) .
We recognize that this problem does not arise and the government‘s position does not render subsections (C) and (D) superfluous if the country designated by the alien, the country of which the alien is a subject, national, or citizen, and one of the six “additional removal countries” are all different countries. Cf. Jama, 329 F.3d at 634 (concluding that the government‘s position does not eviscerate the acceptance requirement of subsection (D) because “[a]n alien is not always a subject, national or citizen of the country in which he was born“). In the most common scenario, however, and in that present in the instant case, the country designated by the alien and the country of which the alien is a subject, national, or citizen is one and the same as the country in which the alien was born. Under step one and step two, the governments of those countries must accept the alien prior to removal. We agree with the district court that “[t]he INS should not be allowed to thwart” the acceptance requirement of step one and step two by relying on step three. Ali, 213 F.R.D. at 403.
B. Case Law
Requiring acceptance before removal is consistent with all of the case law that has touched on the question. The one exception is the Eighth Circuit‘s decision in Jama, which held that
The Second Circuit addressed the predecessor to
Niesel, however, “addressed only the issue of an initial inquiry, not final acceptance of the country to which a person would be returned.” Ali, 213 F.R.D. at 403. Furthermore, not requiring acceptance from the country to which an alien is to be removed is inconsistent with the BIA‘s subsequent decision in Matter of Linnas, 19 I. & N. Dec. 302 (BIA 1985).
In Linnas, the alien, a native of Soviet-occupied Estonia, designated Estonia as the country of deportation. Because Estonia was occupied by the U.S.S.R. and the United States did not recognize the legitimacy of this annexation, the alien contended that he should be sent to offices maintained by Estonia in New York City. The BIA rejected this claim, in part because the offices did not satisfy two prerequisites for a “country” as the term was used in former
Other than the recent Eighth Circuit decision in Jama, the law of the courts of appeals and the BIA supports Petitioners’ position.5 Moreover, an INS policy of requiring acceptance prior to removal is seen in its own regulations, as discussed below.
C. INS Policy and Regulations
In reviewing an agency‘s construction of the statute it administers, the first question for the court is “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If so, the court “must give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. 2778. If, however, the statute is silent or ambiguous regarding the specific issue, the question is “whether the agency‘s answer is based on a permissible construction of the statute.” Id.
The government argues that the district court failed to pay deference to INS regulations. The INS’ proposed construction of the statute, however, is not consistent with its own operating instructions and regulations. For example, INS Operating Instruction 243.1(c)(1) states that “deportation cannot be effected until travel documentation has been obtained” from the country to which the alien is to be deported. INS Operations Instructions 243.1. If the country designated by the alien is unlikely to receive him, a simultaneous request for a travel document is to be made “to the authorities of the country to which he is likely to be deported.” Id.
No alien ordered removed shall be eligible to receive authorization to be employed in the United States unless the Attorney General makes a specific finding that ... the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien.
The government‘s citation of
D. International Law
The district court concluded that Petitioners’ construction of the statute was preferable to the government‘s because it was consistent with international law. Ali, 213 F.R.D. at 405 (citing Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) (stating that “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains“)); see also Kim Ho Ma, 257 F.3d at 1114 (discussing “the well-established Charming Betsy rule of statutory construction which requires that we generally construe [c]ongressional legislation to avoid violating international law” out of respect for other nations); Restatement (Third) of Foreign Relations Law (1987) (“Where fairly possible, a United States statute is to be construed as not to conflict with international law or with an international agreement with the U.S.“). The district court reasoned that the government did not dispute Petitioners’ contentions that removing them to Somalia would subject them to human rights abuses in violation of “customary international law and provisions of three multilateral treaties to which the United States is a signatory.” Ali, 213 F.R.D. at 405. Because it was undisputed that Petitioners would be at risk of suffering human rights abuses if removed to Somalia, the preferred course was to adopt the construction of the statute that is consistent with international law. Id.
On appeal, the government still does not challenge the assertion that Petitioners would be subject to human rights abuses if removed to Somalia. Rather, it argues that international law has been “trumped by the specific statutory authority promulgated by Congress,” and that the district court erred by using international law to “override” congressional intent expressed in the statute.
The district court did not use international law to override the statute. Rather, the court relied on the principle of construing the statute in a manner that avoids violating international law merely as further support for the construction it adopted. Moreover, the district court‘s conclusion that an interpretation of the statute should be adopted that would not result in “persecution or deprivation of life in violation of international law,” id., is supported by the United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture, which states:
It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture,
III. Class Certification
A. Jurisdiction
The government asserts that the district court did not have subject matter jurisdiction over the motion for class certification because
Regardless of the nature of the action or claim or the identity of the ... parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this sub-chapter [
8 U.S.C. §§ 1221 -1231 ], ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
We agree with the district court that
We also find persuasive the cases relied on by the district court. In Tefel v. Reno, the district court found that
We further note that none of the cases cited by the government addresses the question of whether
The government argues that the Attorney General and the Commissioner of the INS are not the proper respondents in this case because they do not have “day-to-day control” over Petitioners.7 The government cites Brittingham v. United States, 982 F.2d 378 (9th Cir.1992), in which we stated that “[t]he proper respondent in a federal habeas corpus petition is the petitioner‘s `immediate custodian,‘” and that the custodian is the person with “`day-to-day control over the prisoner.‘” Id. at 379 (quoting Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C.Cir.1986) (Bork, J., in camera), and Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986)). The government therefore contends that the former INS District Director is the proper respondent and challenges the district court‘s conclusion that the law regarding immigration habeas petitions is unsettled.
Contrary to the government‘s contention, although the principle that the immediate custodian is the proper respondent to a habeas petition is clear, the application of this principle in immigration habeas petitions does not lead to a simple resolution of how to identify the proper respondent. See, e.g., Armentero v. INS, 340 F.3d 1058, 1067 (9th Cir.2003) (stating that “neither Supreme Court case law nor our own precedent states a clear path toward identifying the proper respondent or respondents in an immigration detainee‘s habeas petition“); Vasquez v. Reno, 233 F.3d 688, 691-92 (1st Cir.2000) (stating that the case law regarding the proper respondent to habeas petitions filed by detained aliens is sparse, incoherent, and in disarray), cert. denied, 534 U.S. 816, 122 S.Ct. 43, 151 L.Ed.2d 15 (2001). Nonetheless, in Armentero, we held that the Attorney General was the proper respondent to an immigration habeas petition, citing the necessity to base the concept of “custodian” “more on the legal reality of control than the technicalities of who administers on a day-to-day basis the facility in which an individual is detained.” Armentero, 340 F.3d at 1070; see also Henderson v. INS, 157 F.3d 106, 125-26 (2d Cir.1998) (emphasizing the Attorney General‘s “unique role” as the “ultimate decisionmaker” in immigration habeas actions, but ultimately declining to decide the issue). Because immigration detainees are often transferred between different institutions around the country, the local INS District Director is a “local figurehead” who is not an appropriate respondent. Armentero, 340 F.3d at 1071-72.
Petitioners are not merely in the custody of the INS District Director but are subject to a removal order that is based on the Attorney General‘s interpretation of the statute. Thus, the Attorney General, whose unique role as the ultimate decision-maker is particularly evident here, is the proper respondent. Armentero, 340 F.3d at 1071-72.
C. Nationwide Class
Respondents contend that the district court‘s habeas jurisdiction is limited to its territorial jurisdiction and that the court‘s certification of a nationwide class accordingly exceeded its jurisdiction. The government cites language in
The government points to the Supreme Court‘s admonition that “a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). The Court in Califano went on, however, to reject “the extreme position that such a class may never be certified,” and reaffirmed the rule that the certification of a nationwide class is “committed in the first instance to the discretion of the district court.” Id. at 702-03, 99 S.Ct. 2545. More importantly, the Court rejected the argument that the district court in that case erred in certifying a nationwide class, stating that
[n]othing in
Rule 23 ... limits the geographical scope of a class action that is brought in conformity with that Rule.... Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class. If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.
Id. at 702, 99 S.Ct. 2545 (citation omitted).
In Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), the Supreme Court stated that “the language of
Califano and Braden together support the conclusion that in a habeas proceeding the district court may certify a nationwide habeas class, provided that the court has personal jurisdiction over the custodian. See id. at 494-95, 93 S.Ct. 1123 (stating that the writ of habeas corpus acts not upon “the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody“); Roman, 162 F.Supp.2d at 761 (reasoning that “[o]nce a court takes the step of approving the Attorney General as a proper respondent [to a habeas petition], there would appear to be no jurisdictional reason why the petition could not be heard in any district in which the Attorney General was subject to service of process“). The Attorney General is subject to service of process in Washington, where the long-arm statute “extends jurisdiction to the limit of federal due process.” Chan v. Soc‘y Expeditions, Inc., 39 F.3d 1398, 1405 (9th Cir.1994). We therefore affirm the district court‘s certification of a nationwide class.
D. Standing
The government points to
The government further argues that Petitioners’ standing is insufficient to confer next friend standing for class members who have not signed the habeas petition, emphasizing that habeas is an “individual” remedy. In Mead v. Parker, 464 F.2d 1108 (9th Cir.1972), twenty-seven inmates filed a habeas petition that purported to be a class action on behalf of numerous other inmates. We held that the district court erred in holding that “habeas corpus is not an appropriate vehicle for a class action” because, although habeas relates to “the individual petitioner and to his unique problem[,] ... there can be cases ... where the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate.” Id. at 1112-13; cf. Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir.1987) (stating that, although “[s]uch actions are ordinarily disfavored,” “[t]his court has held that a class action may lie in habeas corpus,” and citing Mead); United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1126-27 (2d Cir. 1974) (finding a habeas class action appropriate); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir.1973) (adopting language in Mead and concluding that a class action may be appropriate in a habeas proceeding). Petitioners have clearly established the requisite standing.
E. Federal Rule of Civil Procedure 23
The government contends that the district court erred in looking to
The only provision cited by the government as “displacing”
IV. Release of Petitioners
Here, the district court ordered the immediate release of Petitioners Ali, Aweys, and Hundiye pursuant to Zadvydas.10 Ali, 213 F.R.D. at 411. The court reasoned that there was no significant likelihood of Petitioners’ removal in the reasonably foreseeable future because of the court‘s holding that their removal to Somalia would violate
The government briefly argues that the district court erred in ordering Petitioners’ release, contending for the first time on appeal that Petitioners were being held pursuant to
Even if we were to accept this newly-asserted basis for detention, however, we would still affirm the district court. We recently held that Zadvydas did not apply where the petitioner was being detained pursuant to
Under Zadvydas, “an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” 533 U.S. at 701, 121 S.Ct. 2491. Because we hold that the INS may not remove Petitioners to Somalia, there is no significant likelihood of removal in the reasonably foreseeable future; consequently, the district court properly released Petitioners pursuant to Zadvydas.
AFFIRMED.
REAVLEY, Circuit Judge, dissenting:
I agree that we have jurisdiction but dissent from the judgment, and would reverse, because I read
The only prior authority is the Eighth Circuit decision in Jama v. Immigration and Naturalization Service, 329 F.3d 630 (8th Cir.2003), with which I agree. Opinions applying
Notes
Former § 1253(a) stated:
The deportation of an alien in the United States provided for in this chapter, or any other Act or treaty, shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States.... If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded. 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. If the government of such country fails finally to advise the Attorney General or the alien within three months following the date of original inquiry, or within such other period as the Attorney General shall deem reasonable under the circumstances in a particular case, whether that government will or will not accept such alien into its territory, 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 —
(1) to the country from which such alien last entered the United States;
(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;
(3) to the country in which he was born;
(4) to the country in which the place of his birth is situated at the time he is ordered deported;
(5) to any country in which he resided prior to entering the country from which he entered the United States;
(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or
(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.
Respondents assert that § 1231 differs from § 1253 because § 1253 did not contain a provision similar to § 1231(h), which provides that “[n]othing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States.” This provision is irrelevant to the issue at stake here and does not change the fact that § 1231(b)(2) is virtually identical to its predecessor. Moreover, the position that the Attorney General may not remove an alien to a country lacking a functioning government to accept him does not violate § 1231(h).