, Jama v. Immigration and Customs Enforcement :: 543 U.S. 335 (2005) :: US LAW US Supreme Court Center

Jama v. Immigration and Customs Enforcement :: 543 U.S. 335 (2005) :: US LAW US Supreme Court Center

    OCTOBER TERM, 2004



    certiorari to the united states court of appeals for the 8th circuit

    No. 03–674.Argued October 12, 2004—Decided January 12, 2005

    Title eight U. S. C. §1231(b)(2) prescribes the method for deciding on the usa to which an alien ineligible to stay within the United States may be removed. Petitioner had his refugee repute within the United States terminated for a criminal conviction. When he declined to designate a country to which he desired to be eliminated, the Immigration Judge ordered him eliminated to Somalia, his usa of beginning, pursuant to §1231(b)(2)(E)(iv). Petitioner filed a habeas petition to assignment the designation, claiming that Somalia had no functioning government and hence couldn't consent earlier to his removal, and that the Government changed into barred from eliminating him there absent such enhance consent. The District Court agreed, but the Eighth Circuit reversed, protecting that §1231(b)(2)(E)(iv) does now not require boost popularity through the destination u . s ..

    Held: Section 1231(b)(2)(E)(iv) permits an alien to be eliminated to a rustic with out the improvement consent of that united states of america’s government. Pp. 2–17.

       (a) Section 1231(b)(2) offers 4 consecutive elimination commands: (1) An alien shall be eliminated to the country of his preference (subparagraphs (A) to (C)), unless a circumstance casting off that command is glad; (2) in any other case he will be removed to the united states of america of which he's a citizen (subparagraph (D)), except a situation eliminating that command is happy; (3) otherwise he shall be removed to a country with which he has a lesser connection (subparagraph (E), clauses (i) to (vi), such as the country of his beginning (clause iv)); or (four) if that is “impracticable, inadvisable or impossible,” he will be eliminated to any other united states of america whose government will accept him (subparagraph (E), clause (vii)). Here, the query is whether the Lawyer General became precluded from putting off petitioner to Somalia beneath subparagraph (E), clause (iv), because Somalia had now not consented. Pp. 2–6.

       (b) In all of subparagraph (E), an recognition requirement seems handiest in clause (vii), the fourth step of the technique, which the Lawyer General may invoke simplest after finding the 1/3 step “impracticable, inadvisable, or impossible.” Clauses (i) through (vi) incorporate no longer a phrase approximately reputation with the aid of the vacation spot country. Including the word “some other” in clause (vii) does not import the acceptance requirement into clauses (i)–(vi). Such a studying stretches the modifier too far, contrary to “the grammatical ‘rule of the final antecedent,’ ” Barnhart v. Thomas, 540 U. S. 20, 26. Subparagraph (E)’s shape does no longer refute the inference derived from the remaining-antecedent rule. Pp. 6–9.

       (c) Nor is an recognition requirement appear in §1231(b)(2)’s shape. First, the overlap between subparagraphs (D) and (E) is not so complete as to justify implementing an recognition requirement at the 0.33 step inside the call of preventing the Lawyer General from “circumventing” the second step. Second, the statute expressly countenances removal to a rustic notwithstanding its objections. Subparagraph (C) offers that at the first step of the united states-selection method, the Lawyer General “may additionally” chorus from putting off an alien to the united states of his preference if that united states does not be given the alien; the Lawyer General hence has discretion to override any lack of reputation. Finally, the life of an recognition requirement on the fourth step does not mean that this type of requirement have to exist on the 0.33. To infer an absolute rule of attractiveness where Congress has now not clearly set it forth might run counter to this Court’s standard policy of deference to the President in foreign affairs, and would not be vital to make certain suitable consideration to conditions within the country of elimination, for the reason that aliens facing persecution or different mistreatment have some of to be had remedies. Pp. 10–13.

       (d) Contrary to petitioner’s argument, the reputation requirement is “neither settled judicial production nor one that [the Court] might be justified in presuming Congress, by way of its silence, impliedly accredited,” United States v. Powell, 379 U. S. 48, fifty five, n. thirteen, in its maximum latest reenactment of §1231(b)(2). Pp. 13–16.

    329 F. 3d 630, affirmed.

       Scalia, J., added the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, wherein Stevens, Ginsburg, and Breyer, JJ., joined.

    543 U. S. ____ (2005)

    NO. 03-674


    on writ of certiorari to the us courtroom of appeals for the eighth circuit

    [January 12, 2005]

       Justice Scalia brought the opinion of the Court.

       When an alien is found ineligible to stay in the United States, the manner for choosing the u . s . to which he may be eliminated is prescribed by using 8 U. S. C. §1231(b)(2). The query in this situation is whether this provision prohibits putting off an alien to a country with out the specific, improve consent of that united states’s authorities.


       Petitioner Keyse Jama was born in Somalia and stays a citizen of that country. He was admitted to america as a refugee, however his refugee repute become terminated in 2000 with the aid of purpose of a criminal conviction. See Jama v. INS, 329 F. 3d 630, 631 (CA8 2003). The Immigration and Naturalization Service (INS) brought an movement to remove petitioner from the US for having committed a criminal offense regarding ethical turpitude. Ibid.; see 8 U. S. C. §§1182(a)(2)(A)(i)(I), 1229a(e)(2)(A). In the executive hearing, petitioner conceded that he became problem to removal, although he sought diverse varieties of comfort from that determination (adjustment of status, withholding of elimination, comfort under the Convention Against Torture, and asylum). He declined to designate a country to which he favored to be removed. The Immigration Judge ordered petitioner removed to Somalia, his u . s . a . of delivery and citizenship. The Board of Immigration Appeals affirmed that willpower, and petitioner did now not are seeking review in the Court of Appeals.

       Instead, petitioner instituted collateral proceedings below the habeas statute, 28 U. S. C. §2241, to project the designation of Somalia as his destination. He filed his petition within the United States District Court for the District of Minnesota, alleging that Somalia has no functioning government, that Somalia therefore could not consent earlier to his removal, and that the Government was barred from getting rid of him to Somalia absent such strengthen consent. The District Court agreed that petitioner couldn't be eliminated to a country that had not consented earlier to acquire him, Jama v. INS, Civ. File No. 01–1172(JRT/AJB) (Mar. 31, 2002), p. 10, App. to Pet. for Cert. 51a, however a divided panel of the Court of Appeals for the Eighth Circuit reversed, holding that §1231(b)(2) does now not require popularity by means of the destination us of a. 329 F. 3d, at 633–635. We granted certiorari. 540 U. S. 1176 (2004).


       Section 1231(b)(2), which sets out the technique via which the Lawyer General[Footnote 1] selected petitioner’s destination after elimination changed into ordered, gives as follows:

    “(2) Other extraterrestrial beings.—Subject to paragraph (three)—

    “(A) Selection of united states by way of alien.—Except as in any other case furnished on this paragraph—

    “(i) any alien now not defined in paragraph (1) who has been ordered removed can also designate one united states of america to which the alien wants to be eliminated, and

    “(ii) the Lawyer General shall take away the alien to the u . s . a . the alien so designates.

    “(B) Limitation on designation.—An alien may additionally designate below subparagraph (A)(i) a overseas territory contiguous to the US, an adjacent island, or an island adjoining to a overseas territory contiguous to the US as the location to which the alien is to be removed simplest if the alien is a native, citizen, difficulty, or country wide of, or has resided in, that exact territory or island.

    “(C) Disregarding designation.—The Lawyer General may additionally disregard a designation beneath subparagraph (A)(i) if—

    “(i) the alien fails to designate a country directly;

    “(ii) the authorities of the united states of america does not tell the Lawyer General eventually, within 30 days after the date the Lawyer General first inquires, whether the authorities will take delivery of the alien into the usa;

    “(iii) the authorities of the u . s . a . isn't always inclined to simply accept the alien into the us of a; or

    “(iv) the Lawyer General makes a decision that disposing of the alien to the u . s . is prejudicial to the USA.

    “(D) Alternative usa.—If an alien isn't eliminated to a rustic certain underneath subparagraph (A)(i), the Lawyer General shall dispose of the alien to a rustic of which the alien is a topic, countrywide, or citizen except the government of the usa—

    “(i) does now not tell the Lawyer General or the alien ultimately, inside 30 days after the date the Lawyer General first inquires or within every other time period the Lawyer General makes a decision is affordable, whether or not the authorities will receive the alien into the u . s . a .; or

    “(ii) isn't inclined to just accept the alien into the u . s . a ..

    “(E) Additional elimination nations.—If an alien is not eliminated to a rustic beneath the preceding subparagraphs of this paragraph, the Lawyer Gen- eral shall remove the alien to any of the following nations:

    “(i) The u . s . from which the alien became admitted to the USA.

    “(ii) The usa wherein is positioned the foreign port from which the alien left for the USA or for a foreign territory contiguous to america.

    “(iii) A united states of america wherein the alien resided before the alien entered the united states from which the alien entered america.

    “(iv) The u . s . a . wherein the alien become born.

    “(v) The usa that had sovereignty over the alien’s birthplace whilst the alien became born.

    “(vi) The united states of america wherein the alien’s birthplace is located while the alien is ordered eliminated.

    “(vii) If impracticable, inadvisable, or not possible to eliminate the alien to each usa described in a preceding clause of this subparagraph, some other us of a whose authorities will accept the alien into that united states.

    “(F) Removal us of a when United States is at war.—When the USA is at warfare and the Lawyer General decides that it is impracticable, inadvisable, inconvenient, or not possible to put off an alien below this subsection because of the warfare, the Lawyer General might also cast off the alien—

    “(i) to the u . s . a . this is host to a government in exile of the us of a of which the alien is a citizen or issue if the government of the host u . s . will permit the alien’s entry; or

    “(ii) if the recognized government of the usa of which the alien is a citizen or concern isn't in exile, to a country, or a political or territorial subdivision of a country, this is very near the us of a of which the alien is a citizen or concern, or, with the consent of the government of the united states of which the alien is a citizen or situation, to another country.” Immigration and Nationality Act, §241(b)(2), as introduced with the aid of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §305(a)(3), 110 Stat. 3009–600 to 3009–607.

    The statute as a consequence presents 4 consecutive removal commands. (1) An alien will be eliminated to the united states of america of his choice (subparagraphs (A) to (C)), unless one of the conditions removing that command is glad; (2) otherwise he shall be removed to the u . s . of which he is a citizen (subparagraph (D)), except one of the conditions putting off that command is satisfied; (three) otherwise he will be removed to one of the countries with which he has a lesser connection (clauses (i) to (vi) of subparagraph (E)); or (four) if this is “impracticable, inadvisable or impossible,” he will be removed to “another us of a whose government will be given the alien into that u . s . a .” (clause (vii) of subparagraph (E)).    Petitioner declined to designate a country of preference, so step one turned into inapplicable. Petitioner is a citizen of Somalia, which has now not knowledgeable the Lawyer General of its willingness to acquire him (clause (i) of subparagraph (D)), so the Lawyer General was now not obliged to eliminate petitioner to Somalia below the second step. The query is whether the Lawyer General changed into precluded from doing away with petitioner to Somalia under the 0.33 step (clause (iv) of subparagraph (E)) because Somalia had now not given its consent.


       We do no longer lightly expect that Congress has not noted from its adopted textual content necessities that it although intends to apply, and our reluctance is even extra while Congress has proven some place else in the same statute that it is aware of how to make this type of requirement appear. In all of subparagraph (E), an attractiveness requirement seems handiest within the terminal clause (vii), a clause that the Lawyer General might also invoke only after he unearths that the removal options supplied inside the different six are “impracticable, inadvisable, or impossible.” Clauses (i) thru (vi) come first—within the statute and within the procedure of choosing a rustic. And the ones six clauses comprise no longer a word about recognition by way of the vacation spot country; they simply direct that “the Lawyer General shall remove the alien” to any person of them.

       Effects are attached to nonacceptance at some point of the relaxation of paragraph (2), making the failure to specify this kind of impact in maximum of subparagraph (E) conspicuous—and more likely intentional. Subparagraph (C) prescribes the result of nonacceptance inside the first step of the selection manner; subparagraph (D) does the identical for the second step; and clause (vii) of subparagraph (E) does the same for the fourth step.[Footnote 2] With admire to the third step, however, the Lawyer General is directed to transport on to the fourth step most effective if it's miles “impracticable, inadvisable, or impossible to put off the alien to each united states described in” the 1/3 step. Nonacceptance might also virtually be one of the elements taken into consideration in figuring out whether removal to a given us of a is impracticable or inadvisable, however the statute does no longer supply it the dispositive impact petitioner desires.

       Petitioner seizes upon the phrase “any other” in clause (vii) as a way of importing the recognition requirement into clauses (i) via (vi). He argues that if the last-resort usa is “some other united states whose government will receive the alien,” then the countries enumerated in clauses (i) thru (vi) should additionally be “international locations whose governments will receive the alien.” That stretches the modifier too some distance. Just last Term, we rejected a controversy much like petitioner’s, noting that it ran opposite to “the grammatical ‘rule of the final antecedent,’ consistent with which a proscribing clause or word … should commonly be examine as modifying handiest the noun or word that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003). There, a statute referred first to a claimant’s “preceding paintings” after which to “any other type of enormous gainful paintings which exists inside the country wide financial system”; underneath the rule of thumb of the last antecedent, we declined to read the restricting clause “which exists inside the national financial system” into the term “preceding work.” Id., at 26–28 (emphasis deleted); accord, FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389–390 (1959). We as a consequence did now not treat “any other” because the “reputedly connecting modifier” that the dissent here thinks “every other” to be, publish, at four.[Footnote 3]

       Nor does the shape of subparagraph (E) refute the inference derived from the ultimate-antecedent rule. Each clause is distinct and ends with a duration, strongly suggesting that every can be understood absolutely without studying any similarly.[Footnote four] And as we've already cited, it isn't important to turn to the recognition language of clause (vii) to find the conditions underneath which the Lawyer General is to abandon the 1/3 step and pass to the fourth, the remaining-hotel option of any inclined u . s .. The Lawyer General ought to accomplish that if in his judgment it might be “impracticable, inadvisable, or impossible to cast off the alien to every usa described in” clauses (i) to (vi). This lets in the Lawyer General to take each realistic and geopolitical issues under consideration while selecting a destination united states (and accords with the similar flexibility to skip over irrelevant nations that the statute offers the Lawyer General at the alternative steps, see infra, at 13). Petitioner’s reading would abridge that exercising of Executive judgment, efficaciously deeming the removal of an alien to any united states to be according to se “impracticable, inadvisable, or impossible” absent that united states of america’s enhance popularity, despite the fact that in many instances—together with this one—it is nothing of the type. (Removing an alien to Somalia reputedly entails no extra than setting the alien on one of the frequently scheduled flights from Dubai or Nairobi, and has been carried out some of instances when you consider that petitioner’s elimination proceeding started. App. 36–40 (declaration of detention enforcement officer Eric O’Denius).) Even without enhance session, a rustic with a functioning authorities may also nicely receive a removed alien when he is presented at the border or a port of access; the absence of enhance consent is rarely synonymous with impracticability or impossibility.[Footnote five]


       Petitioner contends that even supposing no recognition requirement is explicit inside the text, one is take place inside the whole shape of §1231(b)(2). The Lawyer General may not do away with an alien to a rustic beneath subparagraph (A) or (D) with out that country’s consent, petitioner motives, so he need to be barred from circumventing that trouble through removing the identical alien to the identical united states beneath subparagraph (E). The dissent rests its argument best on the lifestyles of an attractiveness requirement in step two (subparagraph (D)) and now not in the first step (subparagraphs (A) through (C)).[Footnote 6]

       We word to begin with a point that applies to each petitioner’s and the dissent’s positions: the “circumvention” argument calls for that the us of a the Lawyer General selects at step 3—here, the united states of america of delivery below clause (iv)— additionally be the us of a of citizenship that changed into disqualified at step for failure to simply accept the alien. That will now and again be true, yet the reason step three exists at all is that it's going to not continually be authentic. (Indeed, in petitioner’s case, numerous of the clauses of subparagraph (E) describe Kenya, not Somalia.) Despite this imperfect overlap, petitioner and the dissent are searching for to impose an reputation requirement on all removals underneath step 3, within the call of stopping the Lawyer General from “circumventing” step in the instances in which a step-three u . s . is also the united states of citizenship.

       The greater essential illness in petitioner’s argument, which appeals to a presumed uniformity of attractiveness requirement in the course of §1231(b)(2), is that its premise is fake. It is virtually now not true that the Lawyer General won't get rid of an alien to a rustic underneath subparagraph (A) or (D) without that u . s .’s consent. Subparagraph (C) specifies that the Lawyer General “may also push aside” the alien’s subparagraph (A) designation if the certain usa’s authorities proves unwilling to accept the alien or fails to respond inside 30 days. The phrase “may” typically connotes discretion. See, e.g., Haig v. Agee, 453 U. S. 280, 294, n. 26 (1981). That connotation is mainly apt where, as right here, “may also” is used in contraposition to the phrase “shall”: the Lawyer General “shall eliminate” an alien to the unique us of a, except that the Lawyer General “may additionally” disregard the designation if any individual of four potentially countervailing situations arises. And examining those 4 circumstances reinforces the inappropriateness of analyzing “may additionally” to intend “shall” in subparagraph (C): Would Congress clearly have wanted to prevent the Lawyer General from getting rid of an alien to his usa of preference, simply because that united states of america took 31 days rather than 30 to happen its popularity? (Subparagraph (C), in contrast to subparagraph (D), offers no “affordable time” exception to the 30-day rule.) Petitioner insists that a loss of develop popularity is an absolute bar to elimination, however offers no attainable manner of squaring that insistence with the text of subparagraph (C).[Footnote 7]

       Nor does the life of an attractiveness requirement on the fourth and final step create any structural inference that any such requirement should exist at the 1/3. It would be a stretch to finish that merely because Congress expressly directed the Lawyer General to obtain consent whilst eliminating an alien to a rustic with which the alien lacks the binds of citizenship, nativity, preceding presence, and so forth, Congress ought to also have implicitly required him to gain advance popularity from international locations with which the alien does have such ties. Moreover, if the Lawyer General is unable to stable an alien’s removal on the 1/3 step, all that is left is the last-resort provision permitting removal to a rustic with which the alien has very little connection—if a rustic may be found in order to take him. If none exists, the alien is left inside the equal detachable-but-unremovable limbo as the extraterrestrial beings in Zadvydas v. Davis, 533 U. S. 678 (2001), and Clark v. Martinez, post, p. __, and beneath the rule of thumb announced in the ones instances have to presumptively be released into American society after six months. If that is the result that obtains when the united states of america-choice procedure fails, there is every purpose to chorus from reading regulations into that procedure that do not virtually appear—in particular restrictions upon the 0.33 step, to be able to frequently have the funds for the Lawyer General his remaining practical alternative for removal.

       To infer an absolute rule of popularity wherein Congress has no longer certainly set it forth might run counter to our commonplace policy of deference to the President in subjects of overseas affairs. Removal choices, inclusive of the selection of a eliminated alien’s vacation spot, “may implicate our family members with overseas powers” and require consideration of “converting political and financial situations.” Mathews v. Diaz, 426 U. S. 67, eighty one (1976). Congress has already provided a way for the Lawyer General to avoid removals which might be probably to ruffle diplomatic feathers, or truly to show futile. At every step in the selection method, he's empowered to skip over a rustic that resists accepting the alien, or a rustic that has declined to provide assurances that its border guards will allow the alien access.

       Nor is it vital to infer an acceptance requirement so one can make certain that the Lawyer General will provide appropriate attention to situations within the united states of america of removal. If aliens could face persecution or other mistreatment in the country exact underneath §1231(b)(2), they have a number of to be had treatments: asylum, §1158(b)(1); withholding of removal, §1231(b)(3)(A); alleviation underneath an worldwide settlement prohibiting torture, see 8 CFR §§208.sixteen(c)(4), 208.17(a) (2004); and temporary included popularity, eight U. S. C. §1254a(a)(1). These individualized determinations strike a better stability between securing the elimination of inadmissible extraterrestrial beings and ensuring their humane remedy than does petitioner’s inspiration that silence from Mogadishu inevitably portends future mistreatment and justifies declining to do away with each person to Somalia.


       Petitioner factors to what he describes as the “settled creation” of §1231(b)(2), and asserts that Congress, in its maximum latest re-enactment of the supply, should be deemed to have integrated that production into regulation. We think now not. Neither of the 2 requirements for congressional ratification is met here: Congress did now not simply re-enact §1231(b)(2) with out exchange, nor become the supposed judicial consensus so vast and unquestioned that we should presume Congress knew of and recommended it.

       Removal is a brand new manner created in 1996 thru the fusion of two formerly distinct expulsion proceedings, “deportation” and “exclusion.” IIRIRA, §304(a)(3), a hundred and ten Stat. 3009–589, eight U. S. C. §1229a. Our immigration laws historically outstanding between extraterrestrial beings who have “entered” the USA and extraterrestrial beings nonetheless seeking to go into (whether or not or now not they may be physically on American soil). See Leng May Ma v. Barber, 357 U. S. 185, 187 (1958). “The difference changed into carefully preserved in Title II” of the Immigration and Nationality Act (INA): expelling an alien who had already entered required a deportation intending, while expelling an alien nevertheless looking for admission could be carried out thru the greater summary exclusion intending. Ibid.; see Landon v. Plasencia, 459 U. S. 21, 25–27 (1982) (cataloging variations among the 2 proceedings). Aliens who, like petitioner, have been allowed into the US as refugees had been subject to exclusion proceedings in place of deportation court cases whilst their refugee repute was revoked. eight CFR §207.8 (1995).[Footnote 8]

       The cases on which petitioner is predicated pertained to the INA’s deportation provision, the previous 8 U. S. C. §1253 (1952 ed.). United States ex rel. Tom Man v. Murff, 264 F. 2nd 926 (CA2 1959); Rogers v. Lu, 262 F. 2nd 471 (CADC 1958) (according to curiam).[Footnote 9] In the 2 referred to cases, the Courts of Appeals barred deportation of extraterrestrial beings to the People’s Republic of China, a nation with which the US on the time had no diplomatic family members, without that state’s prior consent. Tom Man, supra, at 928 (analyzing the attractiveness requirement in clause (vii) to cover clauses (i) to (vi) as properly); Rogers, supra, at 471.[Footnote 10] During the equal duration, but, courts—inclusive of the Court of Appeals that decided Tom Man—were refusing to read an attractiveness requirement into the exclusion provision, the previous eight U. S. C. §1227 (1952 ed.). E. g., Menon v. Esperdy, 413 F. second 644, 654 (CA2 1969). Likewise, whilst Congress amended the exclusion provision to expand the listing of feasible destinations—adding three new categories and a fourth, closing-lodge provision absolutely same to the last-motel provision in cutting-edge §1231(b)(2)(E)(vii), see eight U. S. C. §1227(a)(2) (1982 ed.)—courts had been typically skeptical of efforts to read the acceptance requirement back into the alternative clauses. E. g., Walai v. INS, 552 F. Supp. 998, 1000 (SDNY 1982); Amanullah v. Cobb, 862 F. 2nd 362, 369 (CA1 1988) (Aldrich, J., concurring). But see identity., at 365, and n. four (opinion of Pettine, J.).

       In other words, IIRIRA forged the new elimination system out of provisions, best one among which were construed as petitioner desires.[Footnote 11] And even the supposed judicial consensus with admire to that one provision boils all the way down to the selections of Courts of Appeals—considered one of which was most effective a -sentence according to curiam that taken into consideration step two, no longer step 3. Rogers, supra, at 471; see n. 9, supra.[Footnote 12] In the context of new §1231(b)(2), the attractiveness requirement is “neither a settled judicial creation nor one that we would be justified in presuming Congress, via its silence, impliedly accredited.” United States v. Powell, 379 U. S. forty eight, fifty five, n. thirteen (1964) (citation unnoticed). Even however the contradictory interpretation of the Board of Immigration Appeals, see n. 10, supra, petitioner’s Circuit authority is just too flimsy to justify presuming that Congress encouraged it whilst the text and structure of the statute are to the opposite.[Footnote 13]


       For the foregoing motives, the judgment of the Court of Appeals is affirmed.

    It is so ordered.

    Footnote 1

     On March 1, 2003, the Department of Homeland Security and its Bureau of Border Security assumed duty for the removal program. Homeland Security Act of 2002, §§441(2), 442(a), 116 Stat. 2192–2194, 6 U. S. C. §§251(2), 252(a) (2000 ed., Supp. II). Accordingly, the discretion formerly vested in the Lawyer General is now vested inside the Secretary of Homeland Security. See §551(d)(2). Be- reason petitioner’s removal complaints, such as the designation of Somalia as the us of a of elimination, passed off before this transfer of capabilities, we hold to refer to the Lawyer General because the relevant decisionmaker.

    Footnote 2

     The dissent contends that there are handiest 3 steps, with all of subparagraph (E) constituting best a single step, and that clause (vii)’s popularity requirement therefore covers the entire subparagraph. Post, at 1, n. 2 (opinion of Souter, J.). We suppose no longer. Clause (vii) applies only after the options set out in the third step are exhausted; it's miles nothing if no longer a discrete, further step within the technique. That step 4 is a separate clause instead of a separate subparagraph is im- fabric: the first step, that is definitely set out in three subparagraphs, belies the dissent’s principle that steps need to precisely parallel subparagraphs.

    Footnote 3

     Indeed, each “other” and “any other” are simply as probably to be phrases of differentiation as they may be to be words of connection. Here the word “another” serves without a doubt to rule out the countries already attempted at the 1/3 step and stated in the conditional prologue of clause (vii) (“If impracticable, inadvisable, or impossible to take away the alien to each usa defined in a preceding clause of this subparagraph, another united states of america …”). It is the reality of that near earlier reference that makes it natural to say “another us of a” here, whereas “A united states” is used at the outset of §1231(b)(1)(C)(iv), in which the connection with “each usa defined in a previous clause of this subparagraph” comes later and hence can't serve as an antecedent for an “Another.” The dissent makes a mountain of this molehill, see post, at five–6.

       The dissent also unearths profound that means in the truth that Congress modified the text from “any us of a” inside the 1996 law to “any other us of a” within the current model. “The Court cannot be right,” it says, “in reducing the 1996 modification to this degree of caprice.” Post, at 7. But if one lays the pre-1996 model of the statute beside the modern-day model, he'll find severa modifications which are because of nothing more than stylistic desire. To take simply one example: Clause (E)(ii) of the modern-day law, which reads “The u . s . in which is placed the foreign port from which the alien left for america or for a overseas territory contiguous to the US,” formerly study “the u . s . a . in which is located the overseas port at which such alien embarked for the US or for foreign contiguous territory.” eight U. S. C. §1253(a)(2) (1994 ed.). The dissent must give an explanation for why these changes had been insignificant while the change from “any country” to “another u . s .” was a momentous challenge upon executive authority.

    Footnote 4

     By evaluation, within the instances on which the dissent is based to rebut the closing-antecedent inference, see publish, at 3–four, the shape reduce the opposite manner: the editing clause seemed now not in a structurally discrete statutory provision, but at the quit of a unmarried, integrated listing—as an instance, “ ‘receives, possesses, or transports in trade or affecting commerce.’ ” United States v. Bass, 404 U. S. 336, 337, 339 (1971); see also United States v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920); United States v. United Verde Copper Co., 196 U. S. 207, 213 (1905). We do no longer dispute that a word is known through its fellows, but here the structure refutes the idea of fellowship.

    Footnote 5

     The Government argued underneath that even though clauses (i) via (vi) of subparagraph (E) require a few form of consent, the vacation spot united states’s reputation of the alien at the port of entry suffices. Brief for Respondent-Appellant in No. 02–2324 (CA8), pp. 43–forty six; Jama v. INS, Civ. File No. 01–1172(JRT/AJB) (D. Minn., Mar. 31, 2002), p. 14, App. to Pet. for Cert. 54a. Because clauses (i) through (vi) include no attractiveness requirement, we need now not pass on petitioner’s competition that after §1231(b)(2) calls for attractiveness, only increase attractiveness will do.

    Footnote 6

     The dissent asserts that we misdescribe petitioner’s argument while we say it rests on each steps one and two. Post, at 14, and n. 10. We observe that petitioner heads the applicable argument “The Plain Language Of The Statute Requires Acceptance At Every Step,” Brief for Petitioner 23 (emphasis introduced), and concludes his description of the united states of america-selection process with the assertion that “[t]he outer restriction of the Lawyer General’s authority, … which circumscribes the selection of any u . s . a ., is that the authorities of the country of removal need to be inclined to simply accept the alien.” Id., at 18 (emphasis brought); see additionally identification., at 19–20.

    Footnote 7

     The equal incompatibility may exist with regard to subparagraph (D), which prescribes that the Lawyer General “shall cast off the alien” to his u . s . a . of citizenship “unless” that united states’s authorities declines to just accept the alien or fails to occur its acceptance within an affordable time. The Government urges that the two exceptions preserve discretion for the Lawyer General: If one of these conditions exists, the Lawyer General is now not required to cast off the alien to that united states of america, but he may also nevertheless achieve this. We need now not remedy whether subparagraph (D) presents this residual stage of discretion; subparagraph (C) is extra than sufficient to illustrate that an popularity requirement does not pervade the choice system within the manner petitioner claims, and different factors suffice to refute the dissent’s extra constrained rivalry. Rejection of the Government’s argument is essential, however, to the dissent’s role, see post, at 15–17—and the right resolution is some distance from clean.

    Footnote 8

     Petitioner’s utility for admission become deemed to had been made after his crook conviction, due to the fact he had not implemented formerly. See eight U. S. C. §1159(a)(1) (1994 ed.) (a refugee must appear for “inspection and exam for admission to the United States as an immigrant in accordance with [§1227, the former exclusion provision]” three hundred and sixty five days after access). The district director carried out petitioner’s examination for admission and located him inadmissible by way of reason of his conviction. Record 97, 99 (Exh. F). This locating, underneath the pre-1996 law, would have subjected petitioner to expulsion “according with” the exclusion provision, not the deportation provision.

    Footnote 9

     Rogers v. Lu in reality worried the lifestyles of an acceptance requirement at step , now not step 3. See Lu v. Rogers, 164 F. Supp. 320, 321 (DC 1958).

    Footnote 10

     The dissent asserts that the Board of Immigration Appeals adhered to a comparable position. Post, at eight. With uncommon exceptions, the BIA follows the regulation of the circuit wherein an character case arises, see Matter of K— S—, 20 I. & N. Dec. 715, 718 (1993); Matter of Anselmo, 20 I. & N. Dec. 25, 30–32 (1989). Thus, in a case bobbing up within the Second Circuit, the BIA adhered (in dictum) to that court docket’s decision in Tom Man. See Matter of Linnas, 19 I. & N. Dec. 302, 306–307 (1985). But in a case decided after Tom Man and Rogers however no longer managed by means of the ones decisions, the BIA held to the opposite: “When designating a rustic in step three as a place of deportation, there may be no requirement that initial inquiry be addressed to the usa to which deportation is ordered … .” Matter of Niesel, 10 I. & N. Dec. fifty seven, fifty nine (1962) (emphasis brought).

    Footnote 11

     The dissent’s declaration, submit, at 10–eleven, that §1231(b)(2) descends entirely from the previous deportation provision is, within the applicable admire, inaccurate. To make sure, the former exclusion provision has its very own distinctive descendant in §1231(b)(1), but that applies best to extraterrestrial beings positioned in removal proceedings straight away upon their arrival at the border, see §§1231(b)(1)(A), (c)(1), now not to formerly excludable aliens who, like petitioner, have been paroled or in any other case allowed into the united states of america. Whereas formerly some extraterrestrial beings who were allowed into the u . s . were excluded and some deported, see §§1227(a)(1), 1253(a) (1994 ed.), now all are removed and their destination chosen under §1231(b)(2), not (b)(1). Section 1231(b)(2) is consequently a descendant of the exclusion provision in addition to the deportation provision, and cases determined under the previous constitute the relevant prior regulation no much less than instances decided under the latter.

       The dissent again and again contends that Congress meant to make no substantive exchange to the previous regulation whilst it enacted §1231(b)(2). E. g., submit, at 10–11. But on the dissent’s view the 1996 change labored instead a big exchange: refugees like petitioner, who previously could be expelled without attractiveness (under former §1227), now can't. See n. eight, supra.

    Footnote 12

     The additional dicta noted by the dissent, post, at 8, do now not lend any additional weight to the argument that Congress ratified a settled judicial production. Dictum settles not anything, even within the courtroom that utters it.

    Footnote 13

     In his quick on the merits, petitioner increases the extra competition—now not offered to, or determined by using, the Court of Appeals—that removal to Somalia is impermissible at any step of §1231(b)(2), due to the fact the dearth of a functioning important authorities way that Somalia is not a “country” as the statute makes use of the time period. The query on which we granted certiorari in this example, as phrased by way of petitioner himself, turned into as follows: “Whether the Lawyer General can dispose of an alien to one of the nations special in eight U. S. C. §1231(b)(2)(E) with out obtaining that united states of america’s acceptance of the alien prior to elimination.” Pet. for Cert. i. That question does now not fairly include whether Somalia is a rustic any extra than it pretty consists of whether or not petitioner is an alien or is well detachable; we can now not determine such issues these days. See this Court’s Rule 14.1(a); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, forty two, n. five (1998).

    543 U. S. ____ (2005)
    NO. 03-674


    on writ of certiorari to america court docket of appeals for the 8th circuit

    [January 12, 2005]

       Justice Souter, joined by means of Justice Stevens, Justice Ginsburg, and Justice Breyer, dissenting.

       Title eight U. S. C. §1231(b) prescribes viable locations for aliens removable from the United States. Paragraph (1) of that subsection governs aliens observed excludable from america inside the first vicinity, while paragraph (2), that is at issue in this example, governs those as soon as admitted for residence however considering the fact that ordered to be deported (for crook behavior at the same time as here, for example).[Footnote 1] As to the latter, paragraph (2) units out 3 options or successive steps for picking the recipient united states of america. At the first step, the alien himself designates the united states, §1231(b)(2)(A), difficulty to conditions set out in subparagraphs (B) and (C). If no elimination to a step-one preference takes place, the Secretary of Homeland Security at step designates the us of a of which the alien “is a topic, country wide, or citizen” because the place to send him. §1231(b)(2)(D). If no such removal occurs, the Secretary at step 3 names a country with which the alien has some previous connection, or (as a ultimate inn) one with which he has no connection in any respect. §1231(b)(2)(E).[Footnote 2]

       The provision for step three describes six countries with various connections to an alien (“[t]he u . s . in which the alien turned into born,” for instance, §1231(b)(2)(E)(iv)), in addition to the choice of ultimate motel, “another country whose government will receive the alien into that u . s .,” §1231(b)(2)(E)(vii). The question is whether or not not only the 7th, final-motel country however additionally the prior six are concern to the circumstance that the “government will receive the alien into that usa.” In my judgment, the recognition requirement applies to all seven; the Court’s opposite end is at battle with the text, shape, records, and legislative history of the statute, and I respectfully dissent.


       The Court comments that “[w]e do now not lightly anticipate that Congress has left out from its followed textual content requirements that it nonetheless intends to apply.” Ante, at 6. Indeed we do no longer, however the question in this situation is whether or not Congress absolutely has omitted an recognition requirement masking the complete “adopted text,” that is, the availability governing all seven picks at step 3. Jama says that the text incorporates simply that requirement, within the 7th and very last clause of §1231(b)(2)(E). As cited, that clause affords a last viable vacation spot for aliens who can't (or, in the Government’s view, must no longer) be eliminated beneath subparagraphs (A) thru (D) or the first six clauses of subparagraph (E); it does so with the aid of authorizing elimination to “another u . s . a . whose government will take delivery of the alien,” §1231(b)(2)(E)(vii).

       Jama contends that the description of “some other” willing country applies an reputation requirement to clauses (i) through (vi) of the equal subparagraph, (E). If Congress had not supposed this, it would have written clause (vii) in another way, as by way of pronouncing, as an example, “a rustic whose authorities will be given the alien” or “any united states of america whose government will receive the alien” or “any other u . s . a ., if that us of a will be given the alien.” Congress, in different words, had some simple drafting alternatives that could no longer have indicated any motive to attach an popularity requirement to clauses (i) thru (vi), but rather used language certainly read as alluding to a not unusual function of all of the international locations in the collection, a willingness to take the alien. Jama could consequently have us draw the sincere end that each one step-three designations are situation to attractiveness with the aid of the us of a selected, simply as we've got reasoned earlier than whilst construing similar statutory language. United States v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920) (“The prohibitions amplify to the usage of meals products for making ‘beer, wine, or other intoxicating malt or vinous liquor for beverage functions.’ … It is simple that every one of the phrases utilized in a legislative act are to take delivery of force and which means, and of direction the qualifying words ‘other intoxicating’ in this act can not be rejected. It isn't always to be assumed that Congress had no purpose in inserting them or that it did so with out proceeding that they have to receive due force and effect. The Government insists that the intention changed into to consist of beer and wine whether intoxicating or no longer. If so the usage of this phraseology become quite superfluous, and it'd were sufficient to have written the act with out the qualifying phrases” (quotation ignored)).

       The Court dodges the thrust of the congressional language by using invoking the last antecedent rule as a grammatical motive for confining the requirement of a receiving usa’s willingness strictly to the seventh third-step alternative, in which it's miles expressly set out. Under the ultimate antecedent rule, “a limiting clause or phrase … ought to in general be examine as editing only the noun or word that it straight away follows … .” Barnhart v. Thomas, 540 U. S. 20, 26 (2003), quoted ante, at 7. If the guideline applied right here, it'd suggest that the word “whose authorities will be given …” modified handiest the remaining-choice “united states” in clause (vii), to the exclusion of every “u . s . a .” referred to inside the right now previous six clauses, however the seemingly connecting modifier, “any other.”

       But the last antecedent rule fails to restrict the inclined-authorities connection with clause (vii). The rule governs interpretation handiest “normally,” and it “can assuredly be overcome with the aid of other indicia of meaning … .” Barnhart, supra, at 26. Over the years, such indicia have cautioned us against invoking the rule (often unanimously) at the least as often as we have trusted 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 (bringing up United States v. United Verde Copper Co., 196 U. S. 207 (1905)). And here, the opposite indicia of that means point with one accord to making use of the reputation requirement to each 0.33-step option.

       The first of these indicia is the evaluation between the textual content of clause (vii), which is the remaining resort for “deportation,” and the wording of the corresponding provision inside the adjacent and cognate paragraph of the identical subsection that offers with “exclusion.” As the Court explains, ante, at 14, the 1996 amendments addressing removal of aliens gathered into one statute earlier provisions coping with the two distinct sorts of elimination: what the sooner law known as exclusion, this is, the removal of an excludable alien “with appreciate to whom [removal] lawsuits … had been initiated on the time of such alien’s arrival,” §1231(b)(1), and what the sooner law known as deportation, that is, the removal of all other aliens. Exclusion is the sole challenge of paragraph (1) of the cutting-edge statute, at the same time as deportation is the only problem of paragraph (2), the one at issue right here. See supra, at 1.

       The separate attention to the two lessons of removable aliens consists of separate provisions for choosing the united states to which an alien can be removed. Paragraph (1) units out numerous options for excludable aliens, tons as paragraph (2) does for people who are deportable. And similar to the final clause of the very last subparagraph of paragraph (2) (clause (vii)), the final clause of the final subparagraph of paragraph (1) affords a closing motel that is to be had whilst removal of an excludable alien to any of the previously defined nations “is impracticable, inadvisable, or impossible.” §1231(b)(1)(C)(iv). The closing-hotel provisions vary in one critical way, however. The provision for deportable aliens in paragraph (2) speaks of “some other u . s . a . whose government will be given the alien into that u . s .,” §1231(b)(2)(E)(vii), whilst the only for excludable aliens in paragraph (1) reads, “[a] u . s . a . with a central authority with a purpose to accept the alien into the united states’s territory,” §1231(b)(1)(C)(iv). Congress consequently used one-of-a-kind words (“some other” and “a”) in parallel provisions of two without delay adjoining and otherwise comparable paragraphs. Whereas “any other usa” with a willing authorities is quite simply study to imply that the united states described is like one or greater other international locations already diagnosed, “a rustic” with a inclined authorities includes no such implication.

       Although this textual distinction between simultaneously enacted provisions that cope with the equal challenge makes no sense until Congress intended various things by its distinctive usage, the Court treats the “a country” and “every other u . s . a .” provisions as if they had been exactly the equal. In doing so, it “runs afoul of the usual rule that ‘when the legislature uses sure language in one part of the statute and different language in another, the courtroom assumes distinctive meanings have been meant.’ ” Sosa v. Alvarez-Machain, 542 U. S. ___, ___, n. 9 (2004) (slip op., at 16, n. nine) (quoting 2A N. Singer, Statutes and Statutory Construction §46:06, p. 194 (sixth ed. 2000)); accord, United States v. Gonzales, 520 U. S. 1, 5 (1997) (“Where Congress includes precise language in a single segment of a statute however omits it in another segment of the identical Act, it's miles generally presumed that Congress acts deliberately and purposely in the disparate inclusion or exclusion”); Russello v. United States, 464 U. S. 16, 23 (1983) (“We chorus from concluding here that the differing language in the subsections has the equal that means in every. We could not presume to ascribe this difference to a easy mistake in draftsmanship”). Jama’s contrasting interpretation, which I would adopt, is steady with Congress’s wonderful choices of phrases.[Footnote three]

       Our lengthy-held view that distinct words have awesome meanings is, if some thing, all the stronger right here due to the fact the choice to apply “another” became unmistakably planned. The earlier statute governing deportable extraterrestrial beings like Jama described the us of a of remaining lodge with a neutral modifier, presenting that if no different appropriate destination could be located then deportation needed to be “to any united states of america that 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 eight U. S. C. §1253(a)); see additionally Internal Security Act of 1950, §23, sixty four Stat. 1010 (almost same textual content). But in 1996 Congress went to the problem of converting “any” to “some other,” legislative action that may neither be brushed off as inadvertent nor discounted as a waste of time and effort in simply changing interchangeable modifiers.

       The Court cannot be proper in lowering the 1996 amendment to this stage of whimsy. And if there had been any doubt approximately what Congress became getting at when it modified “any usa” to “every other u . s .,” legislative records and earlier case law integrate to expose what Congress had in mind. At least one House of Congress meant numerous 1996 amendments (consisting of “any u . s .” to “any other u . s .”) to make no substantive change inside 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) (each describing the applicable phase as simply “restat[ing]” the earlier provision). Accordingly, the exchange from “any” to “another” makes maximum sense as a manner to bring the textual content extra obviously into line with an know-how at the a part of Congress that an reputation requirement implemented to all alternatives for deporting all aliens at step 3.[Footnote 4]

       This is likewise the know-how that suits with what we realize approximately the view of the law outside of Congress. In an early choice by Judge Learned Hand, the Second Circuit squarely held that the pre-1996 designations of receiving countries were all concern to the united states of america’s popularity. United States ex rel. Tom Man v. Murff, 264 F. 2d 926 (CA2 1959). Other Circuit reviews took the equal function in dicta. E.g., Amanullah v. Cobb, 862 F. 2nd 362, 365–366 (CA1 1988) (opinion of Pettine, J.); identification., at 369 (Aldrich, J., concurring) (each bringing up Tom Man, supra); Chi Sheng Liu v. Holton, 297 F. second 740, 743 (CA9 1961) (mentioning Tom Man and describing the predecessor to §1231(b)(2) as “provid[ing] that an alien can not be deported to any usa unless its authorities is inclined to accept him into its territory” (internal citation marks ignored)). Nor became the consensus constrained to the courts, for the Board of Immigration Appeals examine the predecessor to subparagraph (E)(i)–(vi) as having an attractiveness 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 ‘authorities’ of a rustic decided on below any of the 3 steps should indicate it's miles inclined to just accept a deported alien into its ‘territory’ ”); however cf. Matter of Niesel, 10 I. & N. Dec. 57, fifty nine (BIA 1962).[Footnote five] And even in the Government, this information seems to have survived proper as much as the time this situation began to draw attention, for simply last yr the Justice Department’s Office of Legal Counsel rendered an opinion (albeit one now not immediately addressing §1231(b)(2)) mentioning that an popularity requirement attaches to clauses (i) through (vi). Memorandum Opinion for the Deputy Lawyer General: Limitations on the Detention Authority of the Immigration and Naturalization Service 27, n. 11 (Feb. 20, 2003), to be had at http://www.usdoj.gov/olc/ INSDetention.htm (as visited Dec. 7, 2004, and to be had in Clerk of Court’s case report).

       The Government, like these days’s Court, is preventing uphill while it attempts to expose that these government didn't specific the consensus view of the law on the time Congress rearranged the statutes, and neither Government nor Court cites a unmarried judicial ruling, prior to the Eighth Circuit’s selection right here, that held or said in dicta or even implied that the popularity requirement did not practice throughout the 1/3 step. The District Court in this example, echoing the Magistrate Judge, harassed this very factor, saying that “in fifty pages of briefing, the government has no longer noted a single case wherein a federal court has sanctioned the removal of a legally admitted alien to a rustic that has no longer agreed to just accept him.” App. to Pet. for Cert. 52a (emphasis and inner citation marks ignored).[Footnote 6] The Court further cites “no longer … a unmarried case.” The fair end is that after Congress amended the statute, it understood the law to require a country’s consent and chose language suitable to that know-how.

       The Court’s try to undercut this evidence founders on a mistake of truth. The Court describes the 1996 change as creating the modern elimination scheme “via the fusion of two previously awesome expulsion complaints, ‘deportation’ and ‘exclusion.’ ” Ante, at 14. According to the Court, this fusion neutralizes Jama’s contention that the settled knowledge of the previous law, expressed in consistent judicial remedy, changed into intended to be carried ahead into subparagraph (E)(i)–(vi). Because the contemporary statute was “forged … out of provisions [one on exclusion and one on deportation], best considered one of which [on deportation] had been construed as petitioner desires,” ante, at 16, the Court says it's far unsound to argue that Congress meant to keep an recognition requirement whilst the statute merged the vintage exclusion and deportation laws.

       The Court is going incorrect here, and we've already seen how. It is actual that the 1996 law makes use of the phrase “elimination” to cowl 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 (certainly, a unmarried subsection) of the U. S. Code. The statutory provision now earlier than us, however, in no manner resulted from a textual merger of two former provisions. As cited, the language of the prior exclusion provision seems (with very few modifications from its predecessor) in one paragraph, evaluate §1231(b)(1)[Footnote 7] with 8 U. S. C. §1227(a) (1994 ed.), at the same time as the language on deportation seems in a separate paragraph, §1231(b)(2), which tracks nearly exactly the textual content of the previous deportation provision, examine §1231(b)(2) with 8 U. S. C. §1253(a) (1994 ed.). The provision to be construed, then, isn't always a “fusion” of antique fragments on specific subjects, but language unchanged in any way beneficial to the Government from the textual content of the previous law, with its settled judicial and administrative creation.

       The Court responds that §1232(b)(2) should descend from the prior exclusion provision due to the fact the vintage exclusion provision could have been used to ship an alien in Jama’s scenario in another country, whereas now §1232(b)(2) is used. Ante, at sixteen, n. 11. But that is beside the factor. The difficulty before us worries the technique (laid out in §1232(b)(2)) by way of which positive extraterrestrial beings are sent overseas. We are thinking about what that method calls for. The Court’s observation, by contrast, involves the separate issue of who is covered by way of that manner. Put truely, whether or not modifications to other sections of the Act or to the enforcing policies enlarged the class of extraterrestrial beings concern to the procedure is beside the point to the query of what the process is, that is, the question of what §1232(b)(2) provides.

       In sum, we are thinking about textual content derived from in advance law understood to require a receiving usa’s popularity of any alien deported to it at step 3. The only substantial textual exchange enables to explicit that understanding of the regulation’s necessities, and House Reports stated that the amending law changed into now not supposed to exchange noticeable regulation. Text, statutory records, and legislative records guide analyzing the clause (vii) language, “any other u . s . a . whose government will be given the alien,” as imparting that any “u . s . a .” cited inside the six preceding clauses, (i) through (vi), must also be inclined to accept the alien before deportation thence may be ordered.


       I stated how connection with §1231(b)(1), governing exclusion, illuminates the choice to speak of “another united states” in §1231(b)(2). A exclusive move-reference in the statute confirms the studying that each one step-3 alternatives are concern to an attractiveness requirement. Jama argues that subparagraph (D), laying out step , consists of an attractiveness requirement that in most instances the Government could be capable of keep away from below the Court’s interpretation of subparagraph (E)(i)–(vi) as lacking this kind of requirement.[Footnote eight] The factor is well taken.

       Subparagraph (D) gives that if an alien isn't eliminated to the united states certain at step one, the Secretary “shall [at step two] put off the alien to a country of which the alien is a topic, country wide, or citizen until the authorities of the u . s .” is unwilling to accept the alien or fails to inform the Secretary inside a positive time that it's far inclined. §1231(b)(2)(D). On the Court’s analyzing of subparagraph (E), however, every time an alien’s country of citizenship (the designee at step ) is the same as his u . s . a . of start (a possible designee at step three, beneath subparagraph (E)(iv)), the u . s .’s refusal to simply accept the alien, precluding removal at step , could be made beside the point because the Government goes to step three and removes to that united states of america below subparagraph (E)(iv). This path to circumvention will likewise be open to the Government whenever, as will nearly constantly be the case, an alien’s united states of citizenship is also defined in one of the different clauses of subparagraph (E). If an alien, as an instance, resided in his u . s . a . of citizenship at any time previous to his arrival in the United States (as is certainly genuine in actually each case), the Government may want to get across the popularity requirement of subparagraph (D) by casting off him at step three: below clause (i) if he came at once from his u . s . a . of citizenship or clause (iii) if he came via manner of another united states or countries.[Footnote nine]

       The Court’s try to deflect this objection, like its attempt to deflect the pre-1996 consensus, runs right into a mistake. As the Court inaccurately characterizes Jama’s argument, he contends that reading a popular recognition requirement out of subparagraph (E) would allow circumvention of the attractiveness requirement in “subparagraph (A) or (D).” Ante, at 11. The Court then goes on to reply the argument as thus restated by means of (effectively) stating that there may be no unconditional popularity requirement at each degree earlier than step 3; that is so due to the fact subparagraph (A) imposes no absolute reputation requirement at the first step. Instead, subparagraph (C) gives that the Government “may also,” however need not, refrain from deporting an alien to his u . s . specific at step one if that usa is unwilling to simply accept him. Ibid.

       But the attractiveness provision governing subparagraph (A) (step one) is beside the point. Jama’s argument rests now not on some common characteristic of “subparagraph[s] (A) [and] (D),” ibid., but on the textual content of subparagraph (D), that is, on step two on my own. He argues that the Government’s power beneath that step is difficulty to an popularity requirement, which the Government’s analyzing might allow it to skirt.[Footnote 10]

       As for the argument that Jama without a doubt makes about the step-two recognition requirement, the Court says handiest that it “want now not remedy whether subparagraph (D)” includes this kind of requirement. Ante, at 12, n. 7. But that is precisely what we do want to solve, for if step two does comprise an attractiveness requirement, then the Court’s interpretation allows the Government to avoid it in nearly if not simply all instances, actually with the aid of intending to step 3. All the Court can muster in reaction to Jama’s real argument (a controversy it ascribes to me) is the declaration that “other [unnamed] elements suffice to refute the dissent’s greater-constrained contention.” Ibid.

       The Government as a minimum joins problem with Jama, when it claims step two has no popularity requirement to steer clear of. The Government says that subparagraph (D) imposes the recognition circumstance most effective on the Secretary’s mandate to take away to the u . s . a . of citizenship; it does not so situation the Secretary’s discretionary authority. When acceptance isn't drawing close, the Government insists, the Secretary nonetheless has discretion to do what is merely no longer obligatory. But for as a minimum two motives, this analyzing is unsound.

       The first is the textual contrast between steps one and two. As noted, subparagraph (C) may be examine to give the Government express permission to disregard at the first step a country’s refusal to just accept an alien: “The [Secretary] can also dismiss [an alien’s] designation [of a country] if … the government of the u . s . a . isn't inclined to simply accept the alien … .” §1231(b)(2)(C). No such express provide of discretion seems in subparagraph (D), which affords that at step , “the [Secretary] shall take away the alien to a rustic of [citizenship] unless the government of the us of a … is not willing to just accept the alien … .” §1231(b)(2)(D). The first of these ostensibly gives authority supplemented with discretion in the event that the acceptance circumstance isn't happy; the second gives authority only if the recognition situation is satisfied. The discretionary sounding language governing the first step tends to show that Congress knew a way to maintain the discretion to act in dismiss of a country’s nonacceptance; since it omitted this kind of provision suggesting discretion just a few traces later in subparagraph (D), the better inference is that Congress had no motive to allow the Government to disregard at step a failure to simply accept with the aid of an alien’s united states of citizenship.[Footnote eleven] Once again in this situation, then, drafting variations among provisions that deal with a similar subject might also fairly be examine to specific variations in congressional rationale.

       The second motive to reject the Government’s role follows from the text of the predecessor statute, which surely furnished that after recognition turned into no longer imminent at step , the Government had to flow on to step three. The relevant language of the earlier model (a model that consisted of one paragraph as opposed to the modern-day five subparagraphs) examine:

    “If the government of [the] u . s . [of citizenship] fails sooner or later to propose the Lawyer General or the alien within three months … whether that authorities will or will no longer receive such alien into its territory, then such deportation will be directed via the Lawyer General within his discretion and without always giving any precedence or desire due to their order as herein set forth [to one of the countries now listed in subparagraph (E)].” Immigration and Nationality Act of 1952, §243(a), sixty six Stat. 212.

    Under this statute, the Government manifestly lacked the discretion it now claims, of doing away with an alien at step without the consent of the usa of citizenship. This is massive for our functions due to the fact, as already stated, House Reports at the invoice that converted the old law into the new one indicate that no substantial adjustments have been meant. See supra, at 7. Given this documented cause, together with the absence of any contrary indication inside the text or legislative records, the current version must be study as its predecessor became. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. ___, ___ (2004) (slip op., at 11) (rejecting an asserted significant alternate due to “scant indication” that Congress intended it).

       In sum, subparagraph (D) gives no authority to cast off at step without the consent of the us of a of citizenship. Jama is consequently accurate that except all of the alternatives at step three are read as being concern to the identical consent requirement, the requirement at step will be nullified.


       At the final ditch, the Court asserts that Jama’s position might “abridge th[e] exercise of Executive judgment,” ante, at 9, and “run counter to our standard coverage of deference to the President in topics of overseas affairs,” ante, at 12–13. The Government in addition contends (throughout its quick) that Jama’s approach could improperly limit the discretion of the Executive Branch. E.g., Brief for Respondent thirteen (“[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 subjects involving overseas family members”). But right here Congress itself has substantially constrained Executive discretion by means of setting up a detailed scheme that the Executive must comply with in getting rid of extraterrestrial beings. This of path is totally suitable, considering it is to Congress that the Constitution offers authority over aliens. Art. I, §8, cl. four; see also, e.g., INS v. Chadha, 462 U. S. 919, 940 (1983) (“The plenary authority of Congress over extraterrestrial beings under Art. I, §eight, cl. 4, isn't always open to impeach”). Talk of judicial deference to the Executive in matters of overseas affairs, then, obscures the character of our challenge right here, that is to mention now not how a whole lot discretion we think the Executive have to have, however how an awful lot discretion Congress has selected to offer it.


       I might reverse the judgment of the Court of Appeals.


    Paragraph (1) of eight U. S. C. §1231(b) reads as follows:

    “(1) Aliens arriving on the United States.

    “Subject to paragraph (3)—

    “(A) In fashionable.

    “Except as supplied with the aid of subparagraphs (B) and (C), an alien who arrives at the United States and with recognize to whom court cases beneath segment 240 were initiated at the time of such alien’s arrival shall be removed to the u . s . a . wherein 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 within the United States in a foreign territory contiguous to the US, an island adjoining to the US, or an island adjacent to a foreign territory contiguous to america, and the alien isn't a native, citizen, problem, or countrywide of, or does no longer are living in, the territory or island, removal will be to the united states of america wherein the alien boarded the vessel that transported the alien to the territory or island.

    “(C) Alternative countries.

    “If the authorities of the united states of america distinct in subparagraph (A) or (B) is unwilling to accept the alien into that usa’s territory, removal shall be to any of the subsequent nations, as directed with the aid of the Lawyer General:

    “(i) The united states of america of which the alien is a citizen, challenge, or countrywide.

    “(ii) The u . s . in which the alien become born.

    “(iii) The usa in which the alien has a house.

    “(iv) A united states with a government on the way to take delivery of the alien into the united states’s territory if elimination to each u . s . a . defined in a previous clause of this subparagraph is impracticable, inadvisable, or not possible.”

    Footnote 1

     Paragraph (2) is quoted within 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 clearly carries 4 steps rather than three, with the third together with the first six clauses of subparagraph (E) and the fourth being the seventh clause of that equal subparagraph. Ante, at five. But even as the seventh clause is in a experience separated from the first six, it appears peculiar to view them as completely distinct for the reason that Congress saw fit now not best to place them inside the equal subparagraph, however also to limit the scope of the “impracticable, inadvisable, or impossible” phrase in clause (vii) to the countries “defined in a preceding clause of this subparagraph.” 8 U. S. C. §1231(b)(2)(E)(vii). This problem with the Court’s studying may also explain why no different court docket has taken a four-step view of the statute and why even the Government describes the law as “ ‘set[ting] forth a modern, 3-step procedure for determining a detachable alien’s vacation spot u . s ..’ ” Brief for Respondent five (quoting Jama v. INS, 329 F. 3d 630, 633 (CA8 2003)). The Court seemingly takes the four-step view so that it may pass on to say that 3 of the 4 steps, but no longer step three, expressly cope with “the effect of nonacceptance.” Ante, at 6. (Since it separates clause (vii) from clauses (i)–(vi), the 4-step view also makes it easier to undermine Jama’s argument that the popularity requirement in clauses (i)–(vi) is grounded within the text of clause (vii).)

       The Court’s reaction that “step one, that is indisputably set out in three subparagraphs, belies the dissent’s principle that steps need to exactly parallel subparagraphs,” ante, at 7, n. 2 (emphasis disregarded), misses the mark due to the fact that is not in truth my contention.

    Footnote three

     The Court responds to this textual difference by means of declaring that “the phrase ‘another’ serves virtually to rule out the international locations already tried at the 0.33 step … .” Ante, at eight, n. 3. But the phrase “any other” isn't had to rule out different international locations; they may be already dominated out by way of the word in clause (vii), “[i]f impracticable, inadvisable, or not possible to do away with the alien to each u . s . defined in a preceding clause of this subparagraph.” §1231(b)(2)(E)(vii). Even had Congress used “a country” or “any u . s .” as opposed to “some other u . s .,” that is, the “countries already attempted on the 0.33 step,” ante, at eight, n. three, would nonetheless be “rule[d] out,” ibid., by way of the “impracticable, inadvisable, or not possible” language.

    Footnote 4

     The point is certainly that Congress modified the textual content to make it reflect greater absolutely what Congress understood the law to be already, an information I explain inside the textual content following this notice. There is not any concept that the alternate created “a momentous difficulty upon executive authority,” ante, at eight, n. three; pretty the opposite.

    Footnote five

     The Court contends that during Linnas the Board of Immigration Appeals became really “adher[ing]” to the relevant circuit precedent. Ante, at 15, n. 10. But the Board in no way said that it become merely following circuit precedent, a terrific omission while contrasted with the BIA decisions the Court cites, in which discussion of the Board’s coverage of honoring circuit precedent changed into 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 opposite case regulation also knocks out the only authority the Court is based on to reject Jama’s argument that the previous regulation loved a settled production requiring consent. Ante, at 16. The Court cites United States v. Powell, 379 U. S. 48 (1964), which denied that there has been any settled creation exactly due to the fact there has been a case taking a opposite standpoint, identification., at fifty five, n. thirteen (mentioning In re Keegan, 18 F. Supp. 746 (SDNY 1937)). Powell is consequently beside the point right here given the unanimity of the courts that construed the previous deportation provision to require acceptance.

    Footnote 7

     This is the paragraph that includes a closing-resort provision the usage of “[a] usa” as opposed to “another u . s . a ..”

    Footnote 8

     The Government contends that subparagraph (D) genuinely consists of no popularity requirement, but as discussed underneath this argument is untenable.

    Footnote nine

     The Court misses the point in pronouncing that “it'll not constantly be true” that “the united states of america the [Secretary] selects at step three … also [is] the united states of citizenship … .” Ante, at 10 (emphasis disregarded). The factor is not that under the Court’s reading the Government will necessarily select a country at step three that lets in it to bypass the step-two reputation requirement, however alternatively that it'll usually, or nearly continually, have the choice to do so.

       Here again, as with the Court’s 4-step interpretation of the statute, see supra, at 1–2, n. 2, not even the Government can enroll in the Court’s view, instead acknowledging forthrightly that during all or almost all cases, the alien’s country of nationality can also be defined in one of the clauses of subparagraph (E). Tr. of Oral Arg. forty–forty one (“[T]he state of nationality is … usually or clearly continually going to be covered [in subparagraph (E)] because [the clauses of that subparagraph] encompass u . s . of beginning, u . s . a . from which the alien departed to go into the USA, country wherein he previously resided, u . s . … that physical games sovereignty over the united states wherein he was born”).

    Footnote 10

     This is the argument in Jama’s short: “This proposed interpretation of the removal statute, by way of which the [Government] can keep away from the express acceptance requirement of step two with the aid of eliminating the alien to the identical united states without recognition in step three, … might make the second one step of the statute, which calls for popularity by using the government of which the alien is a topic, countrywide, or citizen, superfluous and as a result might violate a fundamental precept of statutory production. As the district court docket determined, ‘a removable alien will almost forever be a “subject, national, or citizen” of the u . s . a . wherein he changed into born. As a end result, the reputation requirement of § 1231(b)(2)(D) is without difficulty circumvented via § 1231(b)(2)(E)(iv) if the latter clause is study now not to require attractiveness.’ ” Brief for Petitioner 27 (citation not noted); see also identification., at 28 (“The Ninth Circuit relied in component in this [circumvention] argument in ruling that the attractiveness requirement additionally applies in step 3. It noted that if respondent’s interpretation had been upheld, then even though a government has virtually refused reputation of a detachable character in step , the man or woman will be airdropped surreptitiously into that same united states if it met the requirements of one of the subparts [of step three]” (2nd alteration in authentic) (internal citation marks omitted)).

       The Court responds with the aid of pointing to the heading for a exclusive phase of Jama’s brief and to remoted statements that appear in still other sections. Ante, at 10, n. 6. But the maximum the Court should say based on those references is that Jama advances opportunity demanding situations: first that reputation is needed at each step (wherein case it ought to be required in subparagraph (E)(i)–(vi)) and second that acceptance is at least required at step , in which case the Government’s interpretation allows the step- popularity requirement to be circumvented. Parties making alternative arguments do no longer forfeit either one, yet the Court ignores Jama’s 2d argument.

    Footnote eleven

     Both the Court and the Government rely on such reasoning in any other context, contending that because other components of §1231(b)(2) comprise explicit reputation necessities, no such requirement must be deemed to attach to subparagraph (E)(i)–(vi). Ante, at 6 (“[O]ur reluctance [to imply an acceptance requirement] is even extra while Congress has proven elsewhere inside the equal statute that it is aware of how to make one of these requirement manifest”); Brief for Respondent 13 (“[T]he explicit references to recognition in other components of Section 1231(b)(2) virtually highlight the absence of this sort of reference in Section 1231(b)(2)(E)(i)–(vi)”). As I even have discussed, of course, the Court’s and the Government’s utility of this reasoning is misguided due to the fact the phrasing of subparagraph (E)(vii) expressly (through its use of the word “any other”) attaches an reputation requirement to clauses (i)–(vi).

       Notably, the Court embraces exactly the other reasoning some other place in its opinion, stating that the discretion given to the Secretary in subparagraph (E)(vii) “accords with the similar flexibility to bypass over beside the point nations that the statute offers the [Secretary] at the alternative steps… . ” Ante, at nine. Why the Court is willing to find an implied grant of pliability in subparagraph (D) despite the fact that “Congress has shown somewhere else inside the identical statute that it is aware of a way to make one of these [grant] happen,” ante, at 6, is something of a thriller.

    Oral Argument - October 12, 2004
    Opinion Announcement - January 12, 2005
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