SOUTER, J., DISSENTING
JAMA V. IMMIGRATION AND CUSTOMS ENFORCEMENT
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-674
KEYSE G. JAMA, PETITIONER
v. IMMIGRATION
AND CUSTOMS ENFORCEMENT
on writ of certiorari to the united states court of
appeals for the eighth circuit
[January 12, 2005]
Justice Souter, joined by Justice
Stevens, Justice Ginsburg, and Justice Breyer, dissenting.
Title 8 U. S. C. §1231(b)
prescribes possible destinations for aliens removable from the
United States. Paragraph (1) of that subsection governs aliens
found excludable from the United States in the first place, whereas
paragraph (2), which is at issue in this case, governs those once
admitted for residence but since ordered to be deported (for
criminal conduct while here, for example).[
Footnote 1] As to the latter, paragraph (2) sets out
three options or successive steps for picking the recipient
country. At step one, the alien himself designates the country,
§1231(b)(2)(A), subject to conditions set out in subparagraphs (B)
and (C). If no removal to a step-one choice occurs, the Secretary
of Homeland Security at step two designates the country of which
the alien “is a subject, national, or citizen” as the place to send
him. §1231(b)(2)(D). If no such removal occurs, the Secretary at
step three names a country with which the alien has some prior
connection, or (as a last resort) one with which he has no
connection at all. §1231(b)(2)(E).[
Footnote 2]
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, §1231(b)(2)(E)(iv)), as
well as the choice of last resort, “another country whose
government will accept the alien into that country,”
§1231(b)(2)(E)(vii). The question is whether not only the seventh,
last-resort country but also the prior six are subject to the
condition that the “government will accept the alien into that
country.” In my judgment, the acceptance requirement applies to all
seven; the Court’s contrary conclusion is at war with the text,
structure, history, and legislative history of the statute, and I
respectfully dissent.
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 6. 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 §1231(b)(2)(E). As
noted, that clause provides a last possible destination for aliens
who cannot (or, in the Government’s view, should not) be removed
under subparagraphs (A) through (D) or the first six clauses of
subparagraph (E); it does so by authorizing removal to “another
country whose government will accept the alien,”
§1231(b)(2)(E)(vii).
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 7. 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
14, 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,” §1231(b)(1), and what the earlier law called deportation,
that is, the removal of all other aliens. Exclusion is the sole
subject of paragraph (1) of the current statute, while deportation
is the sole subject of paragraph (2), the one at issue here. See
supra, at 1.
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.” §1231(b)(1)(C)(iv). The two
last-resort provisions differ in one important way, however. The
provision for deportable aliens in paragraph (2) speaks of “another
country whose government will accept the alien into that country,”
§1231(b)(2)(E)(vii), while the one for excludable aliens in
paragraph (1) reads, “[a] country with a government that will
accept the alien into the country’s territory,” §1231(b)(1)(C)(iv).
Congress thus used two different words (“another” and “a”) in
parallel provisions of two immediately adjacent and otherwise
similar paragraphs. Whereas “another country” with a willing
government is readily read to imply that the country described is
like one or more other countries already identified, “a country”
with a willing government carries no such implication.
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. ___, ___, n. 9 (2004) (slip op., at 16, n. 9) (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.[
Footnote 3]
Our long-held view that distinct words have
distinct meanings is, if anything, all the stronger here because
the choice to use “another” was unmistakably deliberate. The prior
statute governing deportable aliens like Jama described the country
of last resort with a neutral modifier, providing that if no other
suitable destination could be found then deportation had to be “to
any country which is willing to accept such alien into its
territory.” Immigration and Nationality Act of 1952, §243(a)(7), 66
Stat. 213 (codified from 1952 to 1996 at 8 U. S. C. §1253(a));
see also Internal Security Act of 1950, §23, 64 Stat. 1010 (nearly
identical text). But in 1996 Congress went to the trouble of
changing “any” to “another,” legislative action that can neither be
dismissed as inadvertent nor discounted as a waste of time and
effort in merely exchanging two interchangeable modifiers.
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 an acceptance
requirement applied to all options for deporting all aliens at step
three.[
Footnote 4]
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 §1231(b)(2) as “provid[ing] that an alien cannot be deported to
any country unless its government is willing to accept him into its
territory” (internal quotation marks omitted)). Nor was the
consensus confined to the courts, for the Board of Immigration
Appeals read the predecessor to subparagraph (E)(i)–(vi) as having
an acceptance requirement.
Matter of Linnas, 19 I. &
N. Dec. 302, 307 (1985) (“[T]he language of that section expressly
requires, or has been construed to require, that the ‘government’
of a country selected under any of the three steps must indicate it
is willing to accept a deported alien into its ‘territory’ ”);
but cf.
Matter of Niesel, 10 I. & N. Dec. 57, 59 (BIA
1962).[
Footnote 5] And even
within the Government, this understanding seems to have survived
right up to the time this case began to draw attention, for just
last year the Justice Department’s Office of Legal Counsel rendered
an opinion (albeit one not directly addressing §1231(b)(2)) stating
that an acceptance requirement attaches to clauses (i) through
(vi). Memorandum Opinion for the Deputy Attorney General:
Limitations on the Detention Authority of the Immigration and
Naturalization Service 27, n. 11 (Feb. 20, 2003), available at
http://www.usdoj.gov/olc/ INSDetention.htm (as visited Dec. 7,
2004, and available in Clerk of Court’s case file).
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).[
Footnote 6] The Court similarly cites “not … a
single case.” The fair conclusion is that when Congress amended the
statute, it understood the law to require a country’s consent and
chose language suited to that understanding.
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 14.
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
subparagraph (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 16, 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
§1231(b)(1)[
Footnote 7] with 8
U. S. C. §1227(a) (1994 ed.), while the language on
deportation appears in a separate paragraph, §1231(b)(2), which
tracks almost exactly the text of the former deportation provision,
compare §1231(b)(2) with 8 U. S. C. §1253(a) (1994 ed.). The
provision to be construed, then, is not a “fusion” of old fragments
on different subjects, but language unchanged in any way helpful to
the Government from the text of the prior law, with its settled
judicial and administrative construction.
The Court responds that §1232(b)(2) must
descend from the prior exclusion provision because the old
exclusion provision would have been used to send an alien in Jama’s
situation out of the country, whereas now §1232(b)(2) is used.
Ante, at 16, n. 11. But this is beside the point. The
issue before us concerns the process (laid out in §1232(b)(2)) by
which certain aliens are sent out of the country. We are
considering what that process requires. The Court’s observation, by
contrast, involves the separate issue of who is covered by that
process. Put simply, whether or not changes to other sections of
the Act or to the implementing regulations enlarged the class of
aliens subject to the process is irrelevant to the question of what
the process is, that is, the question of what §1232(b)(2)
provides.
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
§1231(b)(1), governing exclusion, illuminates the choice to speak
of “another country” in §1231(b)(2). A different cross-reference
within the statute confirms the reading that all step-three choices
are subject to an acceptance requirement. Jama argues that
subparagraph (D), laying out step two, contains an acceptance
requirement that in most cases the Government will be able to
circumvent under the Court’s interpretation of subparagraph
(E)(i)–(vi) as lacking any such requirement.[
Footnote 8] The point is well taken.
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. §1231(b)(2)(D). On the Court’s reading of subparagraph
(E), however, anytime an alien’s country of citizenship (the
designee at step two) is the same as his country of birth (a
possible designee at step three, under subparagraph (E)(iv)), the
country’s refusal to accept the alien, precluding removal at step
two, will be made irrelevant as the Government goes to step three
and removes to that country under subparagraph (E)(iv). This route
to circumvention will likewise be open to the Government whenever,
as will almost always be the case, an alien’s country of
citizenship is also described in one of the other clauses of
subparagraph (E). If an alien, for example, resided in his country
of citizenship at any time prior to his arrival in the United
States (as is undoubtedly true in virtually every case), the
Government could get around the acceptance requirement of
subparagraph (D) by removing him at step three: under clause (i) if
he came directly from his country of citizenship or clause (iii) if
he came by way of another country or countries.[
Footnote 9]
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 11. 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.
Ibid.
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),”
ibid., 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.[
Footnote 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 12, 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
Government says that subparagraph (D) imposes the acceptance
condition only on the Secretary’s mandate to remove to the country
of citizenship; it does not so condition the Secretary’s
discretionary authority. When acceptance is not forthcoming, the
Government insists, the Secretary still has discretion to do what
is merely no longer obligatory. But for at least two reasons, this
reading is unsound.
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 … .”
§1231(b)(2)(C). No such express grant of discretion appears in
subparagraph (D), which provides that at step two, “the [Secretary]
shall remove the alien to a country of [citizenship] unless the
government of the country … is not willing to accept the alien
… .” §1231(b)(2)(D). The first of these ostensibly gives
authority supplemented with discretion in the event that the
acceptance condition is not satisfied; the second gives authority
only if the acceptance condition is satisfied. The discretionary
sounding language governing step one tends to show that Congress
knew how to preserve the discretion to act in disregard of a
country’s nonacceptance; since it omitted any such provision
suggesting discretion just a few lines later in subparagraph (D),
the better inference is that Congress had no intent to allow the
Government to ignore at step two a failure to accept by an alien’s
country of citizenship.[
Footnote
11] Once again in this case, then, drafting differences between
provisions that address a similar subject may fairly be read to
express differences in congressional intent.
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 intended. See
supra, at 7. Given this documented intent, together with
the absence of any contrary indication in the text or legislative
history, the current version should be read as its predecessor was.
See
Koons Buick Pontiac GMC, Inc. v.
Nigh, 543 U.
S. ___, ___ (2004) (slip op., at 11) (rejecting an asserted
substantive change because of “scant indication” that Congress
intended it).
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 9, and “run counter to our
customary policy of deference to the President in matters of
foreign affairs,”
ante, at 12–13. 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
1232(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.
Art. I, §8, cl. 4; see also,
e.g.,
INS
v.
Chadha,
462 U. S. 919, 940
(1983) (“The plenary authority of Congress over aliens under
Art. I, §8, cl. 4, is not open to question”). Talk of
judicial deference to the Executive in matters of foreign affairs,
then, obscures the nature of our task here, which is to say not how
much discretion we think the Executive ought to have, but how much
discretion Congress has chosen to give it.
***
I would reverse the judgment of
the Court of Appeals.
APPENDIX TO OPINION OF SOUTER, J.
Paragraph (1) of 8 U. S. C. §1231(b) reads as follows:
“(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.”
Footnote 1
Paragraph (2) is quoted in the Court’s
opinion.
Ante, at 3–5. Paragraph (1) is quoted in an
appendix to this dissent.
Infra, at 19–20.
Footnote 2
The Court contends that the statute actually
contains four steps rather than three, with the third consisting of
the first six clauses of subparagraph (E) and the fourth being the
seventh clause of that same subparagraph.
Ante, at 5. But
while the seventh clause is in a sense separated from the first
six, it seems odd to view them as entirely distinct since Congress
saw fit not only to put them in the same subparagraph, but also to
limit the scope of the “impracticable, inadvisable, or impossible”
phrase in clause (vii) to the countries “described in a previous
clause of this subparagraph.” 8 U. S. C. §1231(b)(2)(E)(vii).
This difficulty with the Court’s reading may explain why no other
court has taken a four-step view of the statute and why even the
Government describes the law as “ ‘set[ting] forth a
progressive, three-step process for determining a removable alien’s
destination country.’ ” Brief for Respondent 5 (quoting
Jama v.
INS, 329 F. 3d 630, 633 (CA8 2003)).
The Court apparently takes the four-step view so that it can go on
to say that three of the four steps, but not step three, expressly
address “the consequence of nonacceptance.”
Ante, at 6.
(Since it separates clause (vii) from clauses (i)–(vi), the
four-step view also makes it easier to undermine Jama’s argument
that the acceptance requirement in clauses (i)–(vi) is grounded in
the text of clause (vii).)
The Court’s response that “step one, which is
indisputably set out in three subparagraphs, belies the dissent’s
theory that steps must precisely parallel subparagraphs,”
ante, at 7, n. 2 (emphasis omitted), misses the mark
because that is not in fact my contention.
Footnote 3
The Court responds to this textual difference
by asserting that “the word ‘another’ serves simply to rule out the
countries already tried at the third step … .”
Ante,
at 8, n. 3. But the word “another” is not needed to rule out
other countries; they are already ruled out by the phrase in clause
(vii), “[i]f impracticable, inadvisable, or impossible to remove
the alien to each country described in a previous clause of this
subparagraph.” §1231(b)(2)(E)(vii). Even had Congress used “a
country” or “any country” instead of “another country,” that is,
the “countries already tried at the third step,”
ante, at
8, n. 3, would still be “rule[d] out,”
ibid., by the
“impracticable, inadvisable, or impossible” language.
Footnote 4
The point is simply that Congress changed the
text to make it reflect more clearly what Congress understood the
law to be already, an understanding I explain in the text following
this note. There is no suggestion that the change created “a
momentous limitation upon executive authority,”
ante, at
8, n. 3; quite the contrary.
Footnote 5
The Court contends that in
Linnas
the Board of Immigration Appeals was simply “adher[ing]” to the
relevant circuit precedent.
Ante, at 15, n. 10. But
the Board never stated that it was merely following circuit
precedent, a notable omission when contrasted with the BIA
decisions the Court cites, in which discussion of the Board’s
policy of honoring circuit precedent was explicit.
Matter of K—
S—, 20 I. & N. Dec. 715, 718-720 (1993);
Matter of
Anselmo, 20 I. & N. Dec. 25, 31 (1989).
Footnote 6
The absence of contrary case law also knocks
out the sole authority the Court relies on to reject Jama’s
argument that the prior law enjoyed a settled construction
requiring consent.
Ante, at 16. The Court cites
United
States v.
Powell,
379 U. S. 48 (1964),
which denied that there was any settled construction precisely
because there was a case taking a contrary viewpoint,
id.,
at 55, n. 13 (citing
In re Keegan, 18
F. Supp. 746 (SDNY 1937)).
Powell is thus beside the
point here given the unanimity of the courts that construed the
former deportation provision to require acceptance.
Footnote 7
This is the paragraph that contains a
last-resort provision using “[a] country” instead of “another
country.”
Footnote 8
The Government contends that subparagraph (D)
actually contains no acceptance requirement, but as discussed below
this argument is untenable.
Footnote 9
The Court misses the point in saying that “it
will not always be true” that “the country the [Secretary] selects
at step three … also [is] the country of citizenship … .”
Ante, at 10 (emphasis omitted). The point is not that
under the Court’s reading the Government will necessarily select a
country at step three that allows it to circumvent the step-two
acceptance requirement, but rather that it will always, or almost
always, have the option to do so.
Here again, as with the Court’s four-step
interpretation of the statute, see
supra, at 1–2,
n. 2, not even the Government can subscribe to the Court’s
view, instead acknowledging forthrightly that in all or almost all
cases, the alien’s country of nationality will also be described in
one of the clauses of subparagraph (E). Tr. of Oral Arg. 40–41
(“[T]he state of nationality is … always or virtually always going
to be covered [in subparagraph (E)] because [the clauses of that
subparagraph] include country of birth, country from which the
alien departed to enter the United States, country in which he
previously resided, country … that exercises sovereignty over the
country in which he was born”).
Footnote 10
This is the argument in Jama’s brief: “This
proposed interpretation of the removal statute, by which the
[Government] can avoid the explicit acceptance requirement of step
two by removing the alien to the same country without acceptance in
step three, … would make the second step of the statute, which
requires acceptance by the government of which the alien is a
subject, national, or citizen, superfluous and thus would violate a
basic principle of statutory construction. As the district court
observed, ‘a removable alien will almost invariably be a “subject,
national, or citizen” of the country in which he was born. As a
result, the acceptance requirement of § 1231(b)(2)(D) is easily
circumvented by § 1231(b)(2)(E)(iv) if the latter clause is read
not to require acceptance.’ ” Brief for Petitioner 27
(citation omitted); see also
id., at 28 (“The Ninth
Circuit relied in part on this [circumvention] argument in ruling
that the acceptance requirement also applies in step three. It
noted that if respondent’s interpretation were upheld, then even
though a government has actually refused acceptance of a removable
person in step two, the person could be airdropped surreptitiously
into that same country if it met the requirements of one of the
subparts [of step three]” (second alteration in original) (internal
quotation marks omitted)).
The Court responds by pointing to the heading
for a different section of Jama’s brief and to isolated statements
that appear in still other sections.
Ante, at 10,
n. 6. But the most the Court could say based on these
references is that Jama advances alternative challenges: first that
acceptance is required at every step (in which case it should be
required in subparagraph (E)(i)–(vi)) and second that acceptance is
at least required at step two, in which case the Government’s
interpretation allows the step-two acceptance requirement to be
circumvented. Parties making alternative arguments do not forfeit
either one, yet the Court ignores Jama’s second argument.
Footnote 11
Both the Court and the Government rely on
such reasoning in another context, contending that because other
parts of §1231(b)(2) contain express acceptance requirements, no
such requirement should be deemed to attach to subparagraph
(E)(i)–(vi).
Ante, at 6 (“[O]ur reluctance [to imply an
acceptance requirement] is even greater when Congress has shown
elsewhere in the same statute that it knows how to make such a
requirement manifest”); Brief for Respondent 13 (“[T]he express
references to acceptance in other parts of Section 1231(b)(2)
simply highlight the absence of any such reference in Section
1231(b)(2)(E)(i)–(vi)”). As I have discussed, of course, the
Court’s and the Government’s application of this reasoning is
misguided because the phrasing of subparagraph (E)(vii) expressly
(through its use of the word “another”) attaches an acceptance
requirement to clauses (i)–(vi).
Notably, the Court embraces precisely the
opposite reasoning elsewhere in its opinion, stating that the
discretion given to the Secretary in subparagraph (E)(vii) “accords
with the similar flexibility to pass over inappropriate countries
that the statute gives the [Secretary] at the other steps… . ”
Ante, at 9. Why the Court is willing to find an implied
grant of flexibility in subparagraph (D) even though “Congress has
shown elsewhere in the same statute that it knows how to make such
a [grant] manifest,”
ante, at 6, is something of a
mystery.
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