JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
No. 03-674
Supreme Court of the United States
Argued October 12, 2004-Decided January 12, 2005
543 U.S. 335
No. 03-674. Argued October 12, 2004-Decided January 12, 2005
Jeffrey J. Keyes argued the cause for petitioner. With him on the briefs was Kevin M. Magnuson.
Malcolm L. Stewart argued the cause for respondent. With him on the brief were Acting Solicitor General Clem-
JUSTICE SCALIA delivered the opinion of the Court.
When an alien is found ineligible to remain in the United States, the process for selecting the country to which he will be removed is prescribed by
I
Petitioner Keyse Jama was born in Somalia and remains a citizen of that nation. He was admitted to the United States as a refugee, but his refugee status was terminated in 2000 by reason of a criminal conviction. See Jama v. INS, 329 F. 3d 630, 631 (CA8 2003). The Immigration and Naturalization Service (INS) brought an action to remove petitioner from the United States for having committed a crime involving moral turpitude. Ibid.; see
Instead, petitioner instituted collateral proceedings under the habeas statute,
II
Title
“(2) OTHER ALIENS.-Subject to paragraph (3)—
“(A) SELECTION OF COUNTRY BY ALIEN.-Except as otherwise provided in this paragraph-
“(i) any alien not described in paragraph (1) who has been ordered removed may designate one country to which the alien wants to be removed, and
“(ii) the Attorney General shall remove the alien to the country the alien so designates.
“(B) LIMITATION ON DESIGNATION.-An alien may designate under subparagraph (A)(i) a foreign territory contiguous to the United States, an adjacent island, or an island adjacent to a foreign territory contiguous to the United States as the place to which the alien is to be removed only if the alien is a native, citizen, subject, or national of, or has resided in, that designated territory or island.
“(C) DISREGARDING DESIGNATION.-The 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.
“(D) ALTERNATIVE COUNTRY.-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.
“(E) ADDITIONAL REMOVAL COUNTRIES.-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.
“(F) REMOVAL COUNTRY WHEN UNITED STATES IS AT WAR.-When the United States is at war and the Attorney General decides that it is impracticable, inadvisable, inconvenient, or impossible to remove an alien under this subsection because of the war, the Attorney General may remove the alien-
“(i) to the country that is host to a government in exile of the country of which the alien is a citizen or subject if the government of the host country will permit the alien‘s entry; or
“(ii) if the recognized government of the country of which the alien is a citizen or subject is not in exile, to a country, or a political or territorial subdivision of a country, that is very near the country of which the alien is a citizen or subject, or, with the consent of the govern-
ment of the country of which the alien is a citizen or subject, to another country.” Immigration and Nationality Act, § 241(b)(2), as added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 305(a)(3), 110 Stat. 3009-600.
The statute thus provides four consecutive removal commands: (1) An alien shall be removed to the country of his choice (subparagraphs (A) to (C)), unless one of the conditions eliminating that command is satisfied; (2) otherwise he shall be removed to the country of which he is a citizen (subparagraph (D)), unless one of the conditions eliminating that command is satisfied; (3) otherwise he shall be removed to one of the countries with which he has a lesser connection (clauses (i) to (vi) of subparagraph (E)); or (4) if that is “impracticable, inadvisable, or impossible,” he shall be removed to “another country whose government will accept the alien into that country” (clause (vii) of subparagraph (E)). Petitioner declined to designate a country of choice, so the first step was inapplicable. Petitioner is a citizen of Somalia, which has not informed the Attorney General of its willingness to receive him (clause (i) of subparagraph (D)), so the Attorney General was not obliged to remove petitioner to Somalia under the second step. The question is whether the Attorney General was precluded from removing petitioner to Somalia under the third step (clause (iv) of subparagraph (E)) because Somalia had not given its consent.
A
We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest. In all of subparagraph (E), an acceptance requirement appears only in the terminal clause (vii), a clause that the Attorney General may invoke only after he finds that the removal options presented in the
Effects are attached to nonacceptance throughout the rest of paragraph (2), making the failure to specify any such effect in most of subparagraph (E) conspicuous-and more likely intentional. Subparagraph (C) prescribes the consequence of nonacceptance in the first step of the selection process; subparagraph (D) does the same for the second step; and clause (vii) of subparagraph (E) does the same for the fourth step.2 With respect to the third step, however, the Attorney General is directed to move on to the fourth step only if it is “impracticable, inadvisable, or impossible to remove the alien to each country described in” the third step. Nonacceptance may surely be one of the factors considered in determining whether removal to a given country is impracticable or inadvisable, but the statute does not give it the dispositive effect petitioner wishes.
Petitioner seizes upon the word “another” in clause (vii) as a means of importing the acceptance requirement into clauses (i) through (vi). He argues that if the last resort country is “another country whose government will accept the alien,” then the countries enumerated in clauses (i) through (vi) must also be “countries whose governments will accept the alien.” That stretches the modifier too far.
B
Petitioner contends that even if no acceptance requirement is explicit in the text, one is manifest in the entire structure of
The more fundamental defect in petitioner‘s argument, which appeals to a presumed uniformity of acceptance requirement throughout
Nor does the existence of an acceptance requirement at the fourth and final step create any structural inference that such a requirement must exist at the third. It would be a stretch to conclude that merely because Congress expressly directed the Attorney General to obtain consent when removing an alien to a country with which the alien lacks the ties of citizenship, nativity, previous presence, and so on, Congress must also have implicitly required him to obtain advance acceptance from countries with which the alien does have such ties. Moreover, if the Attorney General is unable to secure an alien‘s removal at the third step, all that is left is the last resort provision allowing removal to a country with which the alien has little or no connection-if a country can be found that will take him. If none exists, the alien is left in the same removable-but-unremovable limbo as the aliens in Zadvydas v. Davis, 533 U. S. 678 (2001), and Clark v. Martinez, post, p. 371, and under the rule announced in those cases must presumptively be released into American
To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the President in matters of foreign affairs. Removal decisions, including the selection of a removed alien‘s destination, “may implicate our relations with foreign powers” and require consideration of “changing political and economic circumstances.” Mathews v. Diaz, 426 U. S. 67, 81 (1976). Congress has already provided a way for the Attorney General to avoid removals that are likely to ruffle diplomatic feathers, or simply to prove futile. At each step in the selection process, he is empowered to skip over a country that resists accepting the alien, or a country that has declined to provide assurances that its border guards will allow the alien entry.
Nor is it necessary to infer an acceptance requirement in order to ensure that the Attorney General will give appropriate consideration to conditions in the country of removal. If aliens would face persecution or other mistreatment in the country designated under
Petitioner points to what he describes as the “settled construction” of
Removal is a new procedure created in 1996 through the fusion of two previously distinct expulsion proceedings, “deportation” and “exclusion.” IIRIRA, § 304(a)(3), 110 Stat. 3009-589,
In other words, IIRIRA forged the new removal procedure out of two provisions, only one of which had been construed as petitioner wishes.11 And even the supposed judicial consensus with respect to that one provision boils down to the decisions of two Courts of Appeals one of which was only a two-sentence per curiam that considered step two, not step three. Rogers, supra, at 471; see n. 9, supra.12 In the context of new
*
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SOUTER, joined by JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER, dissenting.
Title
The provision for step three describes six countries with various connections to an alien (“[t]he country in which the alien was born,” for example,
I
The Court remarks that “[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply.” Ante, at 341. Indeed we do not, but the question in this case is whether Congress really has left out an acceptance requirement covering the entire “adopted text,” that is, the provision governing all seven choices at step three. Jama says that the text contains just that requirement, in the seventh and final clause of
Jama contends that the description of “another” willing country applies an acceptance requirement to clauses (i) through (vi) of the same subparagraph, (E). If Congress had not intended this, it would have written clause (vii) differently, as by saying, for example, “a country whose government will accept the alien” or “any country whose government will accept the alien” or “another country, if that country will accept the alien.” Congress, in other words, had some simple drafting alternatives that would not have indicated any intent to attach an acceptance requirement to clauses (i) through (vi), but instead used language naturally read as alluding to a common characteristic of all the countries in the series, a willingness to take the alien. Jama would therefore have us draw the straightforward conclusion that all step-three designations are subject to acceptance by the country selected, just as we have reasoned before when
construing comparable statutory language. United States v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920) (“The prohibitions extend to the use of food products for making ‘beer, wine, or other intoxicating malt or vinous liquor for beverage purposes.’ . . . It is elementary that all of the words used in a legislative act are to be given force and meaning, and of course the qualifying words ‘other intoxicating’ in this act cannot be rejected. It is not to be assumed that Congress had no purpose in inserting them or that it did so without intending that they should be given due force and effect. The Government insists that the intention was to include beer and wine whether intoxicating or not. If so the use of this phraseology was quite superfluous, and it would have been enough to have written the act without the qualifying words” (citation omitted)).The Court dodges the thrust of the congressional language by invoking the last antecedent rule as a grammatical reason for confining the requirement of a receiving country‘s willingness strictly to the seventh third-step option, where it is expressly set out. Under the last antecedent rule, “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003), quoted ante, at 343. If the rule applied here, it would mean that the phrase “whose government will accept . . .” modified only the last choice “country” in clause (vii), to the exclusion of each “country” mentioned in the immediately preceding six clauses, notwithstanding the apparently connecting modifier, “another.”
But the last antecedent rule fails to confine the willing-government reference to clause (vii). The rule governs interpretation only “ordinarily,” and it “can assuredly be overcome by other indicia of meaning . . . .” Barnhart, supra, at 26. Over the years, such indicia have counseled us against invoking the rule (often unanimously) at least as many times as we have relied on it. See Nobelman v. American Savings Bank, 508 U. S. 324, 330–331 (1993); United States v. Bass, 404 U. S. 336, 340, n. 6 (1971); Standard Brewery, supra, at 218 (citing United States v. United Verde Copper Co., 196 U. S. 207 (1905)). And here, the other indicia of meaning point with one accord to applying the acceptance requirement to each third-step option.
The first of these indicia is the contrast between the text of clause (vii), which is the last resort for “deportation,” and the wording of the corresponding provision in the adjacent and cognate paragraph of the same subsection that deals with “exclusion.” As the Court explains, ante, at 349, the 1996 amendments addressing removal of aliens gathered into one statute prior provisions dealing with the two different varieties of removal: what the earlier law called exclusion, that is, the removal of an excludable alien “with respect to whom [removal] proceedings . . . were initiated at the time of such alien‘s arrival,”
The separate attention to the two classes of removable aliens includes separate provisions for selecting the country to which an alien may be removed. Paragraph (1) sets out several options for excludable aliens, much as paragraph (2) does for those who are deportable. And just like the final clause of the final subparagraph of paragraph (2) (clause (vii)), the final clause of the final subparagraph of paragraph (1) provides a last resort that is available when removal of an excludable alien to any of the previously described countries “is impracticable, inadvisable, or impossible.”
Although this textual difference between simultaneously enacted provisions that address the same subject makes no sense unless Congress meant different things by its different usage, the Court treats the “a country” and “another country” provisions as if they were exactly the same. In doing so, it “runs afoul of the usual rule that ‘when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.‘” Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed. 2000)); accord, United States v. Gonzales, 520 U. S. 1, 5 (1997) (“‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion‘“); Russello v. United States, 464 U. S. 16, 23 (1983) (“We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship“). Jama‘s contrasting interpretation, which I would adopt, is consistent with Congress‘s distinct choices of words.3
The Court cannot be right in reducing the 1996 amendment to this level of whimsy. And if there were any doubt about what Congress was getting at when it changed “any country” to “another country,” legislative history and prior case law combine to show what Congress had in mind. At least one House of Congress intended various 1996 amendments (including “any country” to “another country“) to make no substantive change in the law. H. R. Conf. Rep. No. 104–828, p. 216 (1996); H. R. Rep. No. 104–469, pt. 1, p. 234 (1995) (Judiciary Committee Report) (both describing the relevant section as merely “restat[ing]” the earlier provision). Accordingly, the change from “any” to “another” makes most sense as a way to bring the text more obviously into line with an understanding on the part of Congress that
This is also the understanding that fits with what we know about the view of the law outside of Congress. In an early decision by Judge Learned Hand, the Second Circuit squarely held that the pre-1996 designations of receiving countries were all subject to the country‘s acceptance. United States ex rel. Tom Man v. Murff, 264 F. 2d 926 (CA2 1959). Other Circuit opinions took the same position in dicta. E. g., Amanullah v. Cobb, 862 F. 2d 362, 365–366 (CA1 1988) (opinion of Pettine, J.); id., at 369 (Aldrich, J., concurring) (both citing Tom Man, supra); Chi Sheng Liu v. Holton, 297 F. 2d 740, 743 (CA9 1961) (citing Tom Man and describing the predecessor to
The Government, like today‘s Court, is fighting uphill when it tries to show that these authorities failed to express the consensus view of the law at the time Congress rearranged the statutes, and neither Government nor Court cites a single judicial ruling, prior to the Eighth Circuit‘s decision here, that held or stated in dicta or even implied that the acceptance requirement did not apply throughout the third step. The District Court in this case, echoing the Magistrate Judge, stressed this very point, saying that “in fifty pages of briefing, the government has not cited a single case in which a federal court has sanctioned the removal of a legally admitted alien to a country that has not agreed to accept him.” App. to Pet. for Cert. 52a (emphasis and internal quotation marks omitted).6 The Court similarly cites “not . . . a single case.” The fair conclusion is that when
The Court‘s attempt to undercut this evidence founders on a mistake of fact. The Court describes the 1996 amendment as creating the current removal scheme “through the fusion of two previously distinct expulsion proceedings, ‘deportation’ and ‘exclusion.‘” Ante, at 349. According to the Court, this fusion neutralizes Jama‘s contention that the settled understanding of the prior law, expressed in consistent judicial treatment, was meant to be carried forward into subparagraphs (E)(i)–(vi). Because the current statute was “forged . . . out of two provisions [one on exclusion and one on deportation], only one of which [on deportation] had been construed as petitioner wishes,” ante, at 351, the Court says it is unsound to argue that Congress meant to preserve an acceptance requirement when the statute merged the old exclusion and deportation laws.
The Court goes wrong here, and we have already seen how. It is true that the 1996 law uses the word “removal” to cover both exclusion and deportation, e. g., Calcano-Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001), and places the former exclusion and deportation provisions in a single section (indeed, a single subsection) of the U. S. Code. The statutory provision now before us, however, in no way resulted from a textual merger of two former provisions. As noted, the language of the prior exclusion provision appears (with very few changes from its predecessor) in one paragraph, compare
The Court responds that
In sum, we are considering text derived from earlier law understood to require a receiving country‘s acceptance of any alien deported to it at step three. The only significant textual change helps to express that understanding of the law‘s requirements, and two House Reports stated that the amending legislation was not meant to change substantive law. Text, statutory history, and legislative history support reading the clause (vii) language, “another country whose government will accept the alien,” as providing that any “country” mentioned in the six preceding clauses, (i) through (vi), must also be willing to accept the alien before deportation thence may be ordered.
II
I mentioned how reference to
Subparagraph (D) provides that if an alien is not removed to the country designated at step one, the Secretary “shall [at step two] remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country” is unwilling to accept the alien or fails to inform the Secretary within a certain time that it is willing.
The Court‘s attempt to deflect this objection, like its attempt to deflect the pre-1996 consensus, runs into a mistake. As the Court inaccurately characterizes Jama‘s argument, he contends that reading a general acceptance requirement out of subparagraph (E) would permit circumvention of the acceptance requirement in “subparagraph (A) or (D).” Ante, at 346. The Court then goes on to answer the argument as thus restated by (correctly) pointing out that there is no unconditional acceptance requirement at every stage before step three; this is so because subparagraph (A) imposes no absolute acceptance requirement at step one. Instead, subparagraph (C) provides that the Government “may,” but need not, refrain from deporting an alien to his country designated at step one if that country is unwilling to accept him. Ante, at 346–347.
But the acceptance provision governing subparagraph (A) (step one) is beside the point. Jama‘s argument rests not on some common feature of “subparagraph[s] (A) [and] (D),” ante, at 346, but on the text of subparagraph (D), that is, on step two alone. He argues that the Government‘s power under that step is subject to an acceptance requirement, which the Government‘s reading would allow it to skirt.10
As for the argument that Jama actually makes about the step-two acceptance requirement, the Court says only that it “need not resolve whether subparagraph (D)” contains such a requirement. Ante, at 347, n. 7. But that is precisely what we do need to resolve, for if step two does contain an acceptance requirement, then the Court‘s interpretation allows the Government to evade it in nearly if not actually all cases, simply by proceeding to step three. All the Court can muster in response to Jama‘s actual argument (an argument it ascribes to me) is the statement that “other [unnamed] factors suffice to refute the dissent‘s more limited contention.” Ibid.
The Government at least joins issue with Jama, when it claims step two has no acceptance requirement to evade.
The first is the textual contrast between steps one and two. As noted, subparagraph (C) can be read to give the Government express permission to ignore at step one a country‘s refusal to accept an alien: “The [Secretary] may disregard [an alien‘s] designation [of a country] if . . . the government of the country is not willing to accept the alien . . . .”
The second reason to reject the Government‘s position follows from the text of the predecessor statute, which clearly provided that when acceptance was not forthcoming at step two, the Government had to move on to step three. The relevant language of the prior version (a version that consisted of one paragraph instead of the current five subparagraphs) read:
“If the government of [the] country [of citizenship] fails finally to advise the Attorney General or the alien within three months . . . 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 [to one of the countries now listed in subparagraph (E)].” Immigration and Nationality Act of 1952, § 243(a), 66 Stat. 212.
Under this statute, the Government obviously lacked the discretion it now claims, of removing an alien at step two without the consent of the country of citizenship. This is significant for our purposes because, as already mentioned, two House Reports on the bill that transformed the old law into the new one indicate that no substantive changes were in-
In sum, subparagraph (D) provides no authority to remove at step two without the consent of the country of citizenship. Jama is consequently correct that unless all of the options at step three are read as being subject to the same consent requirement, the requirement at step two will be nullified.
III
At the last ditch, the Court asserts that Jama‘s position would “abridge th[e] exercise of executive judgment,” ante, at 344, and “run counter to our customary policy of deference to the President in matters of foreign affairs,” ante, at 348. The Government similarly contends (throughout its brief) that Jama‘s approach would improperly limit the discretion of the Executive Branch. E. g., Brief for Respondent 13 (“[C]onstruing Section 1231(b)(2)(E)(i)–(vi) not to require acceptance preserves the traditional authority of the Executive Branch to make case-by-case judgments in matters involving foreign relations“). But here Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens. This of course is entirely appropriate, since it is to Congress that the Constitution gives authority over aliens.
APPENDIX TO OPINION OF SOUTER, J.
Paragraph (1) of
“(1) Aliens arriving at the United States.
“Subject to paragraph (3)—
“(A) In general
“Except as provided by subparagraphs (B) and (C), an alien who arrives at the United States and with respect to whom proceedings under section [240] were initiated at the time of such alien‘s arrival shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States.
“(B) Travel from contiguous territory
“If the alien boarded the vessel or aircraft on which the alien arrived in the United States in a foreign territory contiguous to the United States, an island adjacent to the United States, or an island adjacent to a foreign territory contiguous to the United States, and the alien is not a native, citizen, subject, or national of, or does not reside in, the territory or island, removal shall be to the country in which the alien boarded the vessel that transported the alien to the territory or island.
“(C) Alternative countries
“If the government of the country designated in subparagraph (A) or (B) is unwilling to accept the alien into that country‘s territory, removal shall be to any of the following countries, as directed by the Attorney General:
“(i) The country of which the alien is a citizen, subject, or national.
“(ii) The country in which the alien was born.
“(iii) The country in which the alien has a residence.
“(iv) A country with a government that will accept the alien into the country‘s territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible.”
Notes
The Court‘s response that “[s]tep one, which is indisputably set out in three subparagraphs, belies the dissent‘s theory that steps must precisely parallel subparagraphs,” ante, at 342, n. 2 (emphasis deleted), misses the mark because that is not in fact my contention.