By Abdul Wahid Sheikh Osman

Background

The United States Supreme Court is the ultimate judicial authority and the highest court in the country. It consists of the Chief Justice of the United States and eight justices. At its discretion, and within certain guidelines established by Congress, the Court each year hears a limited number of the cases it is asked to decide. Most of its work consists of appellate review of cases from state supreme courts or from lower federal courts. Those cases usually involve important questions about the Constitution or federal law.

On Tuesday October 12, the Supreme Court will hear the oral arguments in a landmark case that involves a citizen of Somalia . The case is Keyse G. Jama , Petitioner, v. Immigration and Naturalization Service . The decision of the Court in this case is likely to have long lasting impact on the immigration laws of our nation. The issue before the court is whether the Attorney General can remove an alien to his country of birth pursuant to 8 U.S.C § 1231(b)(2)E when that country lacks a functioning central government that is able to either accept or object to his return.

Posture

In June 2000, INS initiated removal proceedings against Mr.Jama. He attempted to avoid removal by filing application for asylum. The immigration laws allow the INS to detain an alien in removal proceedings while his asylum application is being reviewed. On May 2001 the removal order became final and the immigration courts denied all forms of relief from removal. The immigration laws allow the INS to further detain an alien with a final order of removal for up to 6 months in order to ensure the alien's physical presence at the moment of removal. Also, the immigration service may, under immigration rules, continue to detain an alien past the 6 months if it can remove the alien in the “reasonably foreseeable future.” Thus, Mr. Jama has remained in detention under the theory that when the courts have completed their review of whether he can or cannot be deported to Somalia , he may be removable.

On June 28, 2001 he filed writ of Habeas Corpus pro se in the United States District Court for the District of Minnesota, the federal trial court. The habeas petition is a petition to the court to require the government to show that their action against Mr. Jama is legal. At that point, Minnesota Advocates for Human Rights contacted Briggs and Morgan, a prominent and high profile Minneapolis law firm, about handling the case pro bono ( without pay)..

Initially, the case was heard by a United States Magistrate Judge and on February 1, 2002, Magistrate Judge Arthur Boylan issued a report and recommendation stating that under the statue governing the selection of countries to which an alien may be removed the INS must obtain the acceptance of the government of the country to which Mr. Jama was to be sent—Somalia—before it could remove him there. The district court adopted the report and the recommendation on March 31, 2002 , following a series of decisions from the Second Circuit and other circuits interpreting the statute to require prior acceptance in all circumstances.

The government appealed the district court's order to the Eighth Circuit Court of Appeals, the first appellate court in the federal system. On May 27, 2003 , the Eighth Circuit in a split decision (2-1) disagreed with the earlier appellate decisions and held that because the statutory provision under which the INS sought to remove Mr. Jama did not expressly contain the acceptance requirement, the INS could remove Mr. Jama to Somalia even though it did not have prior acceptance from a Somali government.

Mr Jama first sought rehearing of the issue from the Eighth Circuit en banc (all the active judges), which was denied, and then appealed to the Supreme Court. In a related development, shortly after the Eighth Circuit ruled on the Jama case, the Ninth Circuit Court of Appeals in Seattle, the largest of the 13 federal circuits, disagreed with the Eighth Circuit and agreed with the decisions of the earlier courts in upholding a class action prohibiting the INS from deporting any Somalis to Somalia without acceptance of Somali government.

To reconcile between the conflicting interpretations of 8 U.S.C § 1231(b)(2)E by different federal circuits, the Supreme Court ,on February 19, 2004, granted certiorari (a writ of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision) agreeing to decide the question of whether the statute requires the immigration service to get the acceptance of the government of Somalia prior to removal.

Mr Jama is represented by a distinguished legal team led by attorneys Jeffery J. Keyes and Kevin M. Magnusson of Briggs and Morgan while the government is represented by some of the most prominent Justice Department lawyers.

Consequences of the Supreme Court's decision

You can reasonably expect the outcome of the case to be one of the following:

A) If the Supreme Court decides that the statute does not allow the immigration service to remove aliens to a country without a government because there is not acceptance, the U.S. government would not be able to remove anyone to Somalia until there is a government that has accepted their return. Unless the immigration service could locate a different country to which it could legally deport Somalis with final orders of removal, it is likely that all such Somalis could not be held in detention after getting the final removal order. Only extremely dangerous or mentally unstable Somalis would be detained.

B) If the Supreme Court decides that acceptance is not required prior to removal in the situation of Somalia , then it is likely that the U.S. government would attempt to remove all Somalis with final removal orders to Somalia following the Court's decision. However, there are a number of other legal arguments that could be raised in habeas petitions and Somalis who were able to retain lawyers may be able to successfully challenge efforts to remove them.

C) The Supreme Court could issue a broad decision that would affect other aliens besides Somalis. The government has argued that the statute does not allow acceptance in any situation. If the Court agrees with this argument, the immigration service may decide that even countries that refuse to accept an American deportee (because, for example, the country does not believe that the alien is a citizen of that country). In that case, thousands of aliens, whom cannot be removed because no government has agreed to accept them or has rejected them, may be sent to those countries anyway.

The Court is expected to issue its decision within the next few months.

Abdul Wahid Sheikh Osman
Faculty member, the Law School
Walter F. Mondale Hall, University of Minnesota
[email protected] .

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