SOUTER, J., DISSENTING
JAMA V. IMMIGRATION AND CUSTOMS ENFORCEMENT
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
KEYSE G. JAMA, PETITIONER v. IMMIGRATION
AND CUSTOMS ENFORCEMENT
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.
APPENDIX TO OPINION OF SOUTER, J.
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
“(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.”
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.
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.
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.
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.
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).
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.
This is the paragraph that includes a closing-resort provision the usage of “[a] usa” as opposed to “another u . s . a ..”
The Government contends that subparagraph (D) genuinely consists of no popularity requirement, but as discussed underneath this argument is untenable.
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”).
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.
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.
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