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. 17, No. 1, February 21, 2003

The U.S. District Court in Seattle, Washington, has certified a nationwide class and issued a permanent injunction prohibiting the Immigration and Naturalization Service from conducting removals to Somalia. The ruling follows the court's Dec. 2002 order that temporarily restrained the INS from conducting such removals (see "District Court Enjoins Removals to Somalia," Immigrants' Rights Update, Dec. 23, 2002, p. 6). Following the entry of the temporary restraining order, the court had granted a preliminary injunction. At the request of both parties, the court has now declared the injunction permanent.

The petitioners in this case are Somali nationals subject to final orders of removal. They argued that they cannot be removed to Somalia because there is no government in that country to accept their removal and offer them protection.

The injunction is based on Immigration and Nationality Act sec. 241(b), which governs the determination of the country or countries to which respondents may be deported. The INS acknowledged that in nearly every case the statute requires that a government accept a person before the person can be removed to that country. However, the INS contended that acceptance is not required when the removal is made to a country where the individual was born. The agency also argued that where there is no government to reject a person, "acceptance" has occurred.

The court found that since 1997, the INS has removed 196 Somali nationals to Somalia, using charter aircraft to carry out the removals. However, the court also found that INS agents do not accompany the detainees to Somalia. Moreover, the INS was "unable to inform the Court what happens to Somalis who are removed, or even to confirm that the Somalis handed over to the charter aviation company are in fact transported to Somalia."

The court determined that the plain language of the statute requires that in every case a country must be willing to accept a person before that person can actually be removed to that country. The court found this interpretation also supported by the case law interpreting similar language found in the statutory predecessor to section 241(b), former INA sec. 243(a) (1995), and by the legislative history of that provision. The court also found that interpreting the statute in this manner avoids violating international law and that the INS did not dispute that removing Somalis to Somalia "will result in human rights abuses in violation of international law."

In issuing the injunction, the court found that there is a substantial possibility that the petitioners would suffer irreparable harm were they removed to Somalia. The court found that the evidence submitted by the INS fully supported this conclusion: "The INS has shown that Somalia is a country in chaos, engaged in clan warfare with rival groups clashing over turf and control, with no government and no diplomatic relations with the United States. There is no official entity that might provide even the most basic administrative protections upon [the petitioners'] arrival."

Both parties agreed that, because the issuance of a preliminary injunction requires that the legal issues in this case be resolved, the court should make the injunction permanent. Accordingly, the court entered a permanent injunction.

In certifying a nationwide class, the court concluded that such certification is particularly appropriate in this case, because the issue of the proper interpretation of the statute applies nationwide. The court defined the class to exclude individuals who have pending habeas petitions or appeals that raise the issue of whether their removal to Somalia would be unlawful under INA sec. 241(b).

Finally, the court granted the habeas petitions of three of the individual petitioners and ordered their release from detention. In so doing, it found that their continued detention in the face of no significant likelihood of removal in the reasonably foreseeable future would violate the INA, pursuant to the Supreme Court's interpretation of the statute in Zadvydas v. Davis, 533 U.S. 678 (2001). The court declined to rule on the Zadvydas claim of another individual petitioner, because he has a habeas petition pending before another judge. The government has filed a notice of appeal of the case to the Ninth Circuit.

Ali Ali v. Ashcroft, No. C02-2304P (W.D.Wash. Jan. 17, 2003).