Ali Ali v. Ashcroft: District Court Enjoins Removals to Somalia

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

ALI ALI V. ASHCROFT: DISTRICT COURT ENJOINS REMOVALS TO SOMALIA
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

The federal district court in Seattle, Washington, has issued a temporary restraining order prohibiting the Immigration and Naturalization Service from removing Somali nationals in the United States to Somalia. The court also certified a nationwide class for purposes of the TRO, therefore prohibiting any removals from the U.S. to Somalia. The TRO is in effect until the court considers the petitioners' motion for a preliminary injunction, which is scheduled to be heard on Jan. 14, 2003.

The ruling comes in a habeas case filed on behalf of five Somali nationals subject to final orders of removal. The petitioners contend that the Immigration and Nationality Act does not authorize their removal to Somalia, because the government of Somalia has not indicated any intent to accept them. In a Minnesota case that presented the same issue earlier this year, a federal district court held that section 241(b)(2) of the INA requires the acceptance of the receiving country in all cases of removal, and that decision is now on appeal before the U.S. Court of Appeals for the Eighth Circuit. Jama v. INS, No. 01-1172, 2002 WL 507046 (D. Minn. Mar. 31, 2002).

In issuing a TRO, the court found that the petitioners made a strong showing of likely harm were they to be removed to Somalia. The court noted that the INS "by its own submission, demonstrates that Somalia is a war-torn country under strife with no government in control." While the government cited deteriorating conditions in Somalia since Sept. 11, 2001, and indications that terrorists are present there as reasons for removing Somalis from the U.S. at the present time, the court found that these factors "weigh in favor of Petitioners' interest in not being returned to Somalia." The court also concluded that the petitioners demonstrated a strong likelihood of success on the merits.

The court rejected the government's jurisdictional arguments against the TRO. The court found that section 242(f)(1) of the INA, which restricts the authority of courts "to enjoin or restrain the operation of the provisions" of specified sections of the INA, to be inapplicable to this case. The court reasoned that the petitioners in this case do not seek to enjoin the operation of section 241(b), but rather allege that the INS is violating the statute. The court also found the jurisdictional restriction outlined in INA section 242(g) to be inapplicable, noting the narrow construction that the Supreme Court gave to this section in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).

In certifying a nationwide class, the court first noted that in habeas cases a class should generally be more narrowly drawn, to include only individuals under the custody of the director of the detention facility where the petitioner is held. However, the court found that a nationwide class is appropriate where the attorney general may properly be considered the custodian. In this case, the INS did not reveal the location of putative class members, despite a Freedom of Information Act request from the petitioners and questions from the court. The court therefore concluded that it is appropriate to consider the attorney general the custodian and to certify a national class.

Ali Ali v. Ashcroft, No. C02-2304P (W.D.Wash. Dec. 10, 2002).