Ali

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 28 U.S.C. §§ 1291 and 2253.

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…

dissenting:

I agree that we have jurisdiction but dissent from the judgment, and would reverse, because I read 8 U.S.C. § 1231 (b) differently. I see subparagraph E as a broad authorization of removal, separate from the prior subparagraphs and without the limitation of acceptance of the alien by the removal country.

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 § 1253, the law prior to 1996, follow a statute quite different from the current § 1231. The prior statute did condition willing acceptance for all countries to which aliens could be deported. Congress sought fit to change that aspect of the law, and that resolves the case for me.