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AILA/AILF Comments on the DHS/DOJ Joint Proposed Rule Regarding Execution of Removal Orders

Cite as "AILA InfoNet Doc. No. 04081960 (posted Aug. 19, 2004)"

American Immigration Lawyers Association
American Immigration Law Foundation Legal Action Center
______________________________________________
918 F Street, N.W.
Washington, D.C. 20004

(202) 216-2400

August 18, 2004

Richard Sloan
Director, Regulations and Forms Services Division
Department of Homeland Security
425 I Street, NW
Room 4034
Washington, DC 20536

Via e-Mail Transmission: rfs.regs@dhs.gov

Re: ICE No. 2317-04; RIN 1653-AA41

Comments to the Joint Notice of Proposed Rulemaking, Execution of Removal Orders; Countries to Which Aliens May Be Removed, 69 Fed. Reg. 42901 (July 19, 2004)

Dear Mr. Sloan:

The American Immigration Lawyers Association (AILA) and the American Immigration Law Foundation (AILF) jointly submit this comment in response to the notice of proposed rulemaking published July 19, 2004 regarding execution of removal orders, and countries to which aliens may be removed.

The American Immigration Lawyers Association (AILA) is a voluntary bar association of more than 8,600 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization and the facilitation of justice in the field. AILA's members are well acquainted with the removal process, having significant experience representing and educating foreign nationals who are directly affected by the utilization of these processes. The members of our association represent, in these removal processes, foreign nationals from all countries, and from all socio-economic backgrounds. AILA is thus exceptionally qualified to comment on the Department of Homeland Security and Department of Justice joint proposed rule.

The American Immigration Law Foundation (AILF) is a non-profit organization founded in 1987 to increase public understanding of immigration law and policy, to promote public service and professional excellence in the immigration law field, and to advance fundamental fairness, due process, and basic constitutional and human rights in immigration law and administration. The AILF Legal Action Center (LAC) is a non-profit litigation and legal services program whose purpose is to assure the fair and just administration of immigration laws and policies. Part of the LAC's work involves providing mentoring assistance and advice to immigration lawyers on wide-ranging immigration law issues relating, thereby making LAC particularly knowledgeable on these specific matters.

I. INTRODUCTION

The Secretary of Homeland Security and the Attorney General do not have unfettered discretion to determine to which country to remove a deportable or excludable alien. Rather, as recognized by the very first sentence of the stated "Purpose of the Proposed Rulemaking," Congress has specified in 8 USC §§ 1231(b)(1) and (2) the countries to which excludable or removable aliens may be removed. The statute mandates that acceptance of the receiving country is required under all circumstances.

The proposed rules jointly published by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) seek to give the Secretary and the Attorney General power to remove aliens in a manner not authorized by the statute. The Executive Branch does not have the ability through a rulemaking process to assign itself powers that it does not otherwise have. The current effort to use the rulemaking process is particularly troubling given that the U.S. Supreme Court granted a writ of certiorari in Jama v. INS, No. 03-674, on February 23, 2004, to resolve any question of the proper interpretation of the statute. It is the duty of the U.S. Supreme Court, not any federal agency, to resolve splits between the federal circuit courts on the proper interpretation of a statute.

Moreover, not only does the proposed rulemaking rely on an erroneous interpretation of the statute, it is flawed as a matter of policy. The proposed rule would not only purport to allow the removal of aliens to places without a functioning government, such as Somalia, but would also enable the removal of aliens to countries which actively refuse acceptance or fail to respond altogether. The proposed rule would thus expose the United States to the delivery into its borders of aliens from other places without getting acceptance from the United States or even over the objections of the United States. It would also allow for the removal of aliens to countries that have not expressed a willingness to protect the aliens from harm or death, let alone an ability to do so. This would constitute a radical change in foreign policy and the manner in which countries treat unwanted or unwelcome persons.

II. THE AGENCIES LACK AUTHORITY TO ISSUE THESE RULES.

A. The Proposed Rules Violate Constitutional Separation of Powers.

The proposed rules claim to be merely clarifications of existing practice, designed to resolve confusion on the proper interpretation of the statute caused by a conflict between the circuit courts of appeals. In fact, the proposed rules would materially change-not "clarify"-existing regulations. This is reflected by, inter alia, the broad array of provisions that would be revised. Many of these proposed revisions are necessitated by the internal conflicts in existing regulations that would be caused by the proposed rule changes. Revisions to resolve newly created conflicts within existing regulations do not constitute a "clarification."

Equally important, the proposed rules would intervene in the Judicial Branch's Constitutional duties to interpret the laws that Congress has imposed on the Executive Branch's power to remove aliens. The notice fails to address the fact that the U.S. Supreme Court has granted a writ of certiorari in the Jama case. It is the duty of the U.S. Supreme Court, and not the Department of Homeland Security or the Department of Justice, to resolve the difference of interpretation between the circuit courts. See Sup. Ct. R. 10(A). As the oft-quoted passage from Marbury v. Madison asserts, "[i]t is emphatically the province and duty of the judicial department to say what the law is," 5 U.S. 137 (1803). The Executive Branch has no business inserting itself into this process, as the U.S. Supreme Court has already taken up the issue and will determine the proper interpretation of this statute within the next few months.

B. The Proposed Rules Are Ultra Vires.

The Executive Branch does not have unfettered discretion with respect to removing aliens. Rather, it has only such authority as Congress has lawfully delegated to it. Congress has not delegated to the Attorney General or the Department of Homeland Security authority to remove aliens to countries that have not accepted the aliens being removed.

As discussed below, 8 USC § 1231(b) requires that prior acceptance be obtained from any country to which an alien is to be removed. The proposed rules directly contravene this statute by purporting to eliminate the acceptance requirement. Accordingly, the proposed rule is ultra vires. See Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1031 (9th Cir. 2003) ("'A federal regulation in conflict with a federal statute is invalid as a matter of law.'") (quoting Watson v. Proctor, 161 F.3d 593, 598 (9th Cir. 1998)). See also Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent."); Chem. Mfrs. Ass'n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 126 (1985) (no deference given to administrative interpretations where "the legislative history or the purpose and structure of the statute clearly reveal a contrary intent"); and Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 171 (1989) ("But, of course, no deference is due to agency interpretations at odds with the plain language of the statute itself.").

Similarly, the proposed rules directly contravene 8 USC § 1231(b) by providing that "a 'country' for the purpose of removal is not premised on the existence or functionality of a government in that country." Long standing judicial interpretations of the term "country" as used in the immigration statutes have consistently held the opposite. In Chuen v. Esperdy, 285 F.2d 353 (2d Cir. 1960), for example, the court considered the meaning of the term "country" under 8 USC § 1253(a)(7), the predecessor to 8 USC § 1231(b)(2)(E)(vii). The court concluded that "[i]n line with the general Congressional policy of facilitating the deportation of deportable aliens . . . we think that any place possessing a government with authority to accept an alien deported from the United States can qualify as a 'country' under the statute." Id. at 354. See also Rogers v. Sheng, 280 F.2d 663, 664-65 (D.C. Cir. 1960) (the island of Formosa was a "country" for the purposes of former 8 USC § 1253(a) because "there is a government on Formosa which has undisputed control on the island"); and Delany v. Moraitis, 136 F.2d 129, 130 (4th Cir. 1943) ("[A] man's 'country' is more than the territory in which its people live. The term is generally used to indicate the state, the organization of social life which exercises sovereign power in behalf of the people."). As with the proposal to eliminate the acceptance requirement, the proposal to redefine the term "country" under 8 USC § 1231(b)(2) is contrary to long standing judicial interpretations of the statute and is therefore ultra vires. Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The judiciary is the final authority on issues of statutory construction . . . .")

III. THE PROPOSED RULEMAKING IS WRONG IN ASSERTING THAT ACCEPTANCE IS NOT ALWAYS REQUIRED FROM THE RECEIVING COUNTRY.

The proposed rule claims to "clarify" that acceptance by the country of removal is not required prior to deporting an alien to that country. The notice of proposed rulemaking suggests that the only reasonable reading is that with one exception, acceptance is not required from any of the removal countries listed in 8 USC § 1231(b)(2). The one exception is "another country" under 8 USC § 1231(b)(2)(E)(vii). Far from a clarification, this proposed interpretation of the statute is not only untenable, illogical and ill-conceived, it directly contradicts the holdings of several courts which have interpreted this specific statute and other similar provisions in earlier versions of the Immigration and Nationality Act (INA) to require acceptance by the country of removal. The assertion by the DHS and DOJ that their interpretation is the only possible reading is disingenuous at best, if not downright deceptive. The only logical reading of the statute is that it requires the receiving country's acceptance of the alien in all circumstances.

A. The Statutory Interpretation in the Proposed Rulemaking Does Not Comport with the Plain Meaning of the Statute When Read as a Whole.

Statutory interpretation requires a construction of the language "so as to give effect to the intent of Congress." United States v. Am. Trucking Ass'ns, 310 U.S. 534, 542 (1940). The words of the statute must be read in their context within the statute. Id. at 542. The statute should be read as a whole to give every provision meaning. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113 (2001). Read as a whole, the only logical reading of 8 USC § 1231(b)(2) is that it requires that acceptance be received from any country to which an alien is removed. The suggested interpretation in the Notice of Proposed Rulemaking is not supported by the text of the statute and violates cannons of statutory interpretatio

n.

1. The Statute Sets Out a Sequence for Removal That Progresses From Those Countries with the Greatest Connection to the Alien to Those with the Least Connection.

In crafting 8 USC § 1231(b)(2) ("Countries to which aliens may be removed"), Congress authorized the Attorney General (and later the Department of Homeland Security) to remove a deportable alien pursuant to a specific country selection process. The statute incorporates specific limitations on the authority of the Executive Branch to execute that removal through a three-step process. Although the Notice of Proposed Rulemaking recognizes, as it must, the sequential nature of the removal options as set forth under the statute, the interpretation it espouses nonetheless ignores the progressive nature of that multi-tiered process.

In the first step, an alien ordered removed may choose to designate a country to which he may be sent. 8 USC § 1231(b)(2)(A)-(C). If the country designated by the alien is unwilling to accept him or the alien does not designate a country, the second step specified in the statute authorizes removal of the alien to a country "of which the alien is a subject, national, or citizen," if the receiving country accepts the return of the alien. 8 USC § 1231(b)(2)(D). If the alien can not be removed to a country of which the alien is a subject, national or citizen because acceptance cannot be obtained under step two, then step three sets forth "additional removal countries" to which an alien may be removed.

The first six subparts of step three, (i) through (vi), describe various countries with some logical connection to the alien. These countries provide additional possible options for the removal of a deportable alien, though these countries have a more tenuous connection to the alien than that of the country of which the alien is a subject, national or citizen. The last subpart (clause vii) establishes the outer limit of possible removal countries, namely "another country whose government is willing to accept the alien." Indeed, the Notice of Proposed Rulemaking recognizes not only that acceptance is required under this last subpart, but that acceptance is necessary precisely because the alien's connection with any country thereunder may be tenuous to nonexistent. See, e.g., Notice of Proposed Rulemaking, D ("[T]he Act demonstrates a clear and sensible preference for effecting removal with acceptance under sections . . . 241(b)(2)(A)-(D) . . . [and] in the circumstance where the acceptance itself provides the only connection between the alien and the removal country at issue.")

2. The Plain Language of the Statute Demonstrates That Removal to Any of the "Additional" Countries Listed Under 8 USC § 1231(b)(2)(E) Requires Prior Acceptance.

The text of the statute cannot support the reading that acceptance is not required in six of the seven subparts of the third step. Rather, the acceptance requirement in subpart (vii), authorizing removal to yet another country willing to accept the alien, can be read as meaning only that there is an acceptance requirement in all seven subparts. The text of the statute contains at least five different indications that the acceptance requirement applies to all seven subparts.

First, subpart (vii) of § 1231(b)(2)(E) requires "another country whose government will accept the alien into that country." The use of the word "another" rather than the indefinite "a" or "any" indicates that the acceptance requirement in (vii) is in addition to an acceptance requirement in the first six subparts. As a matter of statutory construction, a plain reading of the removal statute of § 1231(b)(2)(E) is that the acceptance requirement of subpart (vii) modifies the previous six subparts. See United States ex rel. Tom Man v. Murff, 264 F.2d 926, 928 (2nd Cir. 1959).

Second, the history of this particular provision supports the finding that the acceptance requirement applies to all countries of removal. The precursor to this provision is § 243(a) of the INA, enacted in 1952. The provision has remained materially unchanged to the present day. This provision was originally written as one paragraph, but subsequent revisions kept the language largely intact and inserted additional headings to improve readability. Subparagraph § 1231(b)(2)(E) is an integrated component of the entire paragraph § 1231(b), with the alternative steps related to and dependant on the previous step. Steps one, two and the last clause of step three each require the acceptance of the receiving government, and only the most mechanical and contrived reading would assert that this requirement does not apply with equal force to the first six clauses of step three. The acceptance requirement permeates the provision.

The third reason why the text of the statute requires acceptance by all receiving countries is that the alternate interpretation proposed by the DHS and DOJ would result in unmanageable and absurd results. For example, the first subpart, § 1231(b)(2)(E)(i), allows removal of the alien to the "country from which the alien was admitted to the United States." Frequently, aliens are admitted to the United States through border countries such as Canada or Mexico, or countries such as in western European which serve as major airline hubs. Congress could not have intended to give the DHS discretion to remove an alien to these sovereign nations without first obtaining that country's acceptance. The proposed DHS interpretation would basically create an exception in the statute for countries that are too dysfunctional or too underdeveloped to resist the dumping of aliens on their shores or at their airports. The statute did not grant unfettered discretion to the DHS to remove an alien when the agency deemed it possible to do so, and the agency does not have the power to read this authority into the statute.

The fourth indication that acceptance is required is the undeniably progressive nature of the provision. The proposed interpretation by DHS would twist the removal process so that acceptance would be required from the country with the closest connection with the alien, namely that country of which the alien is the subject, national or citizen (under § 1231(b)(2)(D)), but acceptance would not be required from those countries with far more tenuous connections with the alien, such as the country from which the alien is admitted to the United States (under § 1231(b)(2)(E)(i) through (vi)). The acceptance requirement would the inexplicably reemerge as a requirement for the country with the most attenuated connection to the alien, another country willing to accept the alien (under § 1231(b)(2)(E)(vii)). This reading illogically eviscerates the progressive structure of the statute.

Finally, the revised headings on the removal statute indicate that acceptance is required in all circumstances. The 1996 amendment and recodification changed the title of what is now § 1231(b)(2)(E) from "Other countries" to "Additional removal countries." The insertion of the word "additional" demonstrates Congress' intent that the countries specified in the third step must be different from those previously considered.

The proper interpretation of the plain language of the statute recognizes that the reference to "another country whose government will accept the alien into that country" in (vii) is an integral and necessary part of the entire provision of § 1231(b)(2)(E). This reading harmonizes the provision as a whole and maintains the clear intent of Congress in delimiting the countries of removal. Thus, Congress has mandated that the Executive Branch must first obtain acceptance by any country prior to removing an alien to that country.

B. The Statutory Interpretation in the Proposed Rulemaking Would Create Inconsistencies in the Statute and Render Parts of the Statute and Other Provisions of the INA Superfluous.

Under the interpretation of § 1231(b)(2) set forth in the proposed rulemaking, DHS could remove an alien under step three to the same country to which it was prohibited from removing the alien under step two. Such an interpretation would make the second section of the statute superfluous, and thus violate basic principles of statutory construction. A removable alien is very frequently a "subject, national or citizen" of the country in which he was born. Allowing removal without acceptance to country of birth, therefore, allows easy circumvention of the acceptance requirement in § 1231(b)(2)(D) and thus would render that provision superfluous.

Other provisions of the Immigration and Nationality Act also would become meaningless if § 1231(b)(2) authorized removal without acceptance by any country to which an alien is to be removed. For instance, § 1231(a)(7)(A) provides that an alien ordered removed is eligible for employment authorization if "the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien." 8 USC § 1231(a)(7)(A). If a receiving country's refusal to accept a deportee could so easily be overridden, this provision, too, effectively would be useless.

In addition, § 1537(b)(2)(C) authorizes limited detention of an alien ordered removed by the Attorney General "[i]f no country is willing to receive such an alien." 8 USC § 1537(b)(2)(C). See also H.R. Rep. No. 104-469 at 243 (1996) ("removal shall be to any country willing to receive the alien. If no country is willing to receive the alien, the alien shall be detained.") This provision mandates that "[t]he Attorney General, in coordination with the Secretary of State, shall make periodic efforts to reach agreement with other countries to accept such an alien and at least every 6 months shall provide to the attorney representing the alien at the removal hearing a written report on the Attorney General's efforts." Id. Furthermore, Congress authorizes the Secretary of State to discontinue the issuance of immigrant and nonimmigrant visas to citizens, nationals and residents of a country if it refuses to accept the return of removal aliens into that country. 8 USC § 1253(d).

C. By Recodifying the Removal Statute Without Material Changes, Congress Adopted the Settled Construction That Acceptance Is Always Required.

1. The Federal Courts Have Consistently Interpreted the Removal Statute as Requiring Acceptance.

The requirement that there be a government in the country of removal which is willing to accept and does accept the alien has been part of the statute authorizing removal since the progressive, three-step removal process was adopted by Congress in the 1950s, and part of the law of deportation for far longer. The federal courts have consistently interpreted this statute to require acceptance from the governments of the various countries listed in the removal statute. For instance, in United States ex rel. Hudak v. Uhl, 20 F. Supp. 928, 929 (N.D.N.Y. 1937), aff'd, 96 F.2d 1023 (2d Cir. 1938), the court held that § 20 of the Immigration Act of February 5, 1917, 29 Stat. 874, required the country to which an alien is sent to accept the alien, stating "It will be presumed in every case of deportation that the United States immigration authorities have obtained the consent of the native sovereignty to receive the deported alien." Likewise, in 1959, the Second Circuit interpreted § 243(a) of the INA as requiring acceptance by the country of removal in all circumstances. United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959). In Tom Man, Judge Learned Hand observed:

There remains therefore one or more of the seven subdivisions of § 243(a) [previously codified at 8 USC § 1253(a)] of which number three [the country in which he was born] certainly covers him and probably several others. However, we think that deportation under any of these is subject to the condition expressed in the seventh subdivision: i.e. that the "country" shall be "willing to accept" him "into its territory."

Id. at 928 (emphasis added). Judge Hand concluded that "[w]e cannot see any reason to suppose that the necessary consent in such situations should not follow the pattern laid down earlier in the section . . . ." Id. See also, e.g., Chi Sheng Liu v. Holton, 297 F.2d 740, 743-44 (9th Cir. 1961) (stating that the removal statute "provides that an alien cannot be deported to any country unless its government is 'willing to accept him into its territory'"); Lee Wei Fang v. Kennedy, 317 F.2d 180, 183 (D.C. Cir. 1963) ("where the aliens were not acceptable to or accepted by the [Chinese] Nationalist Government under the second 'priority' of the statute, deportation could be made only to a country willing to accept them, after inquiry, under the third part of the statute"); Chan Chuen v. Esperdy, 285 F.2d 353, 354 (2d Cir. 1960); United States ex rel. Lee Ming Hon v. Shaughnessy, 142 F. Supp. 468 (S.D.N.Y. 1956); Amanullah & Wahidullah v. Cobb, 862 F.2d 362, 365 (1st Cir. 1988) (Pettine, J.) (discussing 8 USC § 1253(a), the predecessor statute to 8 USC § 1231(b)(2), "Congress required that there be prior inquiry to and assurance from that country that it was indeed willing to accept this alien."); id. at 368 (Coffin, J., concurring) ("it is sheer folly to send an alien to another country without any indication that the country will receive the alien").

The notice of proposed rulemaking makes no reference to the vast majority of this historical precedent. The only one of these cases discussed at all is Tom Man v. Murff, and that discussion is simplistic and misleading. The proposed rulemaking suggests that the "sum of" Tom Man and Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), "lies in the statutory terms of 'accept' and 'country.'" This is simply not true. The courts in these cases reviewed the entirety of the statute to determine when acceptance is required, not what acceptance means or what constitutes a country under the statute.

2. Acceptance has also been required by the Board of Immigration Appeals.

In one of its few candid discussions, the notice of proposed rulemaking confirms that the proposed rules depart from the decision in Matter of Linnas, No. A-8085626, 19 I. & N. Dec. 302, 1985 WL 56051 (BIA Oct. 16, 1985). In Linnas, the Board stated that step three of the country of removal process requires the acceptance of the receiving government in all situations: "the 'government' . . . under any of the three steps must indicate it is willing to accept a deported alien into its 'territory.'" 19 I. & N. Dec. at 307. Likewise, in i, No. A-14438768, 12 I. & N. Dec. 815, 817 1968 WL 14118 (BIA July 25, 1968), the Board stated that "obviously, the United States cannot deport an alien to a country which will not accept her."

3. Existing Regulations, INS Internal Operations Instructions, and Opinions of the Office of Legal Counsel Confirm That Acceptance Is Required.

The proposed rulemaking also necessarily recognizes that existing regulations are inconsistent with the approach taken in the new proposed rules. In fact, current regulations governing the detention, removal, and release process state that the designated country of removal must accept the alien to effectuate removal. See 8 CFR § 241.4(k)(1) (INS officials shall review the custody of certain aliens "where the alien's removal, while proper, cannot be accomplished during the period because no country currently will accept the alien"); 8 CFR § 241.13(d)(1) (an alien may show there is no likelihood of removal in the foreseeable future to the designated country and "no third country willing to accept the alien"); 8 CFR § 241.13(f) (Headquarters Post-Order Detention Unit shall consider factors including "the receiving country's willingness to accept the alien into its territory" in determining whether there is a likelihood of the alien being removed in the foreseeable future); 8 CFR § 241.5(c) (governing conditions of release after the removal period and stating that an officer may "grant employment authorization to an alien released under an order of supervision if the officer specifically finds that . . . [t]he alien cannot be removed because no country will accept the alien").

Similarly, regulations governing detention of aliens beyond the removal period show that travel documents are an essential part of removing an alien. Under 8 CFR § 241.4(g)(3), INS officials "shall consider the ability to obtain a travel document for the alien" in making a custody determination. (Emphasis added.) INS officials must continue to pursue travel documents both during the removal period and after the removal period expires. 8 CFR § 241.4(g)(2). Finally, INS Operations Instruction 243.1(c)(1) makes clear that "deportation cannot be effected until travel documentation has been obtained."

Finally, the Office of Legal Counsel ("OLC") provided an opinion to the Deputy Attorney General of the United States in February of 2003 that directly undermines DHS's interpretation of the statute in this proposed rule. The OLC maintained that § 1231(b)(2)(E)(i)-(vi) require acceptance from any receiving country: "Each of those countries [in subparts (i) through (vi)], of course, would have to be separately negotiated with by the United States, and would also have to be given an appropriate amount of time-presumably 30 days to decide whether to accept or reject the alien." Memorandum Opinion for the Deputy Attorney General: Limitation on the Detention Authority of the Immigration and Naturalization Service n. 11 and accompanying text, (Feb. 20, 2003), available at http://www.usdoj.gov/olc/insdetention.html.

4. Congress Has Repeatedly Ratified the Interpretation Requiring Acceptance.

In the face of this long-standing and consistent construction of the removal statute, Congress repeatedly reenacted or amended the INA in 1965, 1978, 1980, 1990 and 1996 without significant changes. If Congress had intended to allow removal without acceptance, Congress could (and presumably would) have clarified the statute at any of these times. On the contrary, Congress made no material changes and thus repeatedly ratified the settled judicial and administrative construction of the statute to require acceptance by the receiving country.

Following World War II, Congress debated changes to the removal statutes to address the problem of so-called "undeportable" aliens. See, e.g., Deportation and Detention of Aliens: Hearings on H.R. 10 Before the Subcomm. No. 1 of the House Comm. on the Judiciary, 81st Cong., 1st Sess. (1949); Report of the Comm. of the Judiciary, pursuant to S. Res. 137, 80th Cong., 1st Sess., as amended, at 637-38 (1950). Congress chose to address the issue of "undeportables" by expanding the countries to which the Attorney General could seek to gain acceptance. Congress did not authorize the removal of aliens to countries without acceptance.

In 1996, nearly fifty years later, Congress passed the Illegal Immigrant Reform and Immigration Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009. With IIRIRA, Congress combined the procedures for removing excludable and deportable aliens (the former §§ 1227(a)(2) and 1253(a) into a new § 1231(b)(2), respectively) into a unified procedure for removing all aliens. The notice of proposed rulemaking attempts to make much of the "dominant goals and objectives" and "theme" of these amendments, citing Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 486 (1999), in an effort to support its power grab of expanded removal authority. Yet the notice can point to no statements in the legislative history that would indicate that Congress intended to allow the agency to remove aliens without acceptance or over the express objections of the removal country. The wording of the statutory provisions is nearly identical, and there are only negligible changes to the relevant punctuation and formatting. Compare 8 USC § 1253(a) (1994) with § 1231(b)(2).

Furthermore, the legislative history of IIRIRA reveals that these minor changes to the statutory provisions at issue were not intended to be substantive. For instance, the House Judiciary Committee explained that Section 241(b) establishes the countries to which an alien may be removed * * * [and] subsection (b)(2) [§ 1231(b)(2)] restates the provisions in current sections 243(a) and (b) [the former 8 USC § 1253(a)]." H.R. Rep. No 104-469 at 234 (1996) (emphasis added).

In short, by not changing the statute in the face of consistent judicial and administrative interpretations of the statute that acceptance was required, Congress has expressed its agreement and approval of the acceptance requirement in all stages of the removal statute. See Bragdon v. Abbott, 524 U.S. 624, 645 (1998) ("When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well."); Lorillard v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute" and when Congress reenacts the statute without addressing the existing interpretation, Congress is presumed "to adopt that interpretation.")

IV. FACTUAL ASSERTIONS IN THE NOTICE OF PROPOSED RULEMAKING ARE MISLEADING, IRRELEVANT OR WRONG.

The Notice of Proposed Rulemaking includes many factual statements that are misleading and irrelevant. For example, the Notice discusses in detail DHS's practice of accompanying aliens in transit to ensure that they actually get to their country. This information is irrelevant to the issue at hand.

Tacit acceptance by transit countries is not only irrelevant but also wholly ineffective as an attempt to justify tacit or implied acceptance by the receiving country. The language of the statute requires an affirmative act to manifest acceptance and the statute is not concerned with the practice of transit states. To equate the obligation of the U.S. government vis-a-vis a transit state to that owed to the receiving state is not legally supportable because the burden placed on the receiving state is much greater than that placed on the transit state and thus obtaining consent is more crucial.

As to the discussion of the deportation of Mexican nationals without prior notification, this is not an example of removal without acceptance. Rather, the practice of these two governments is to accept the return of their nationals pursuant to the terms of a memorandum of understanding in place between the Mexican government and the U.S. government with regard to the return of foreign nationals. Lists of those individuals who are to be returned by plane or bus to Mexico are provided by the United States. If there are doubts about whether an individual is a Mexican national or citizen, then the Mexican consulate would be contacted. With regard to women and children, there are more specific agreements in place and the Mexican consulate is notified specifically when a woman or child is being returned, and the Mexican consulate is given oversight over the return of such individuals to ensure that appropriate care is taken in such cases. In short, the arrangement with Mexico is far different from the proposed practice of removing aliens to countries without a functioning government, or over the objection of a foreign government. Mexico has accepted the return of aliens pursuant to standing protocols.

V. THE PROPOSED RULES WOULD RAISE SERIOUS FOREIGN POLICY CONCERNS.

A. The Proposed Rule Would Permit the Removal of Aliens Over the Express Objections of Other Nations.

The proposed rule would not only allow DHS to remove aliens to countries without a functioning government, but would enable removal to countries over that countries' express objection. This policy represents a radical departure from the norm. The proposed rule would give rise to serious foreign policy concerns and violate international legal principles of comity.

The Notice of Proposed Rulemaking claims that DHS would not seek to effectuate removals over the objections of other nations. However, nothing in the proposed rule would specifically prohibit this practice and it is likely, given DHS and DOJ's stated objectives of removing persons from the United States who pose potential threats, that individuals will be removed to countries that refuse to accept them. Such an action violates the sovereign equality of states, a jus cogens norm of international law enshrined in the UN Charter to which the United States is a party. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 or www.u.org/aboutun/charter/index.html. Jus cogens norms are those principles of international law from which no State may deviate. See, e.g., Vienna Convention on the Law of Treaties, May 23, 1969, UN Doc.A/Conf.39/27 (United States is a party to this treaty). Unlike customary international law or treaty rules, the effect of which-for purposes of United States domestic law-may arguably be changed by subsequent legislation, jus cogens norms may not be avoided. Id. at Article 53. Sovereign equality has been specifically recognized as a jus cogens norm of international law by numerous experts on the topic. See, e.g., 1 Openheim's International Law (Jennings and Watts, eds. 1991). Further, the norm has been accepted in United States jurisprudence as a principle of international law governing United States conduct as shown below.

One familiar expression of the norm is found in the famous and much cited Lotus decision of the Permanent Court of International Justice where the Court stated that, failing a rule to the contrary, no State may exercise its power in any form over the territory of another State. Case of the S.S. Lotus, PCIJ Ser. A., No. 9, pp. 18-19 (1927). This specific principle was cited in Fed. Trade Comm'n v. Compagnie de Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300 (DC Cir. 1980), where the Court ruled that the FTC's service of compulsory process by mail constituted one nation's exercise of sovereignty within the territory of another sovereign and thus violated international law. The deportation by DHS or DOJ of persons to another sovereign, over that sovereign's objection, through the use of airlines or other modes of transportation is no different from the conduct of the FTC and equally illegal. It is an exercise of U.S. sovereignty within the territory of the objecting state.

Looking at the scenario in reverse, if the United States were the objecting State, it is easy to see why the Sovereign Equality of States as expressed in the rule of the Lotus Case and the FTC case, must be respected unless a State has voluntarily agreed to limit that equality. Absent an agreement by the Congress or the Executive to the contrary, the United States government would strongly object if a foreign country sought to rid itself of persons on its territory who had committed crimes and may be United States citizens or residents by simply dumping them on United States shores. The United States has an absolute right to determine whether it will accept these individuals back into the United States and it has no greater right to do so than any other nation.

B. Deportations Must Not Be Carried Out Without Acceptance, As Governments Are Necessary for the Protection of Human Rights.

International law is not only part of the law of the United States, it is our supreme law, and statutes must be interpreted to confirm with it. U.S. Const. Art VI, cl. 2 ("all Treaties, made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."). The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination."); see also Boos v. Barry, 485 U.S. 312, 323 (1988) (United States has "a vital national interest in complying with international law"). "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.); see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814-15 (1993) (quoting Charming Betsy and labeling the principle a "canon of statutory construction"); see also Restatement (Third) of the Foreign Relations Law of the United States § 114 (1987) ("Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.").

Protecting human rights has been one of the central goals of the international legal system for more than half a century. The 1945 Charter of the United Nations, ratified by virtually every nation in the world including the United States, set the promotion of human rights and fundamental freedoms as one of the United Nations' main purposes. But the goal can be pursued only by governments. Like international law generally, human rights law depends on functioning central governments to enter into treaties and enforce their provisions. Without this mechanism, the basic protections codified in international human rights law, including the right to life and the right to be free from torture or cruel, inhuman or degrading treatment or punishment, cannot be implemented. Without a government - or under a rogue government - human rights cannot be enforced.

Customary international law obligates states to prohibit and protect against grave human rights abuses, such as slavery, genocide, torture, or cruel, inhuman, or degrading treatment or punishment. E.g., Restatement (Third), supra, § 702 (a "state violates international law if, as a matter of state policy, it practices, encourages, or condones [human rights abuses]"); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980) (prohibition of torture constitutes customary international law). States' obligations to prevent human rights violations are not limited to their own citizens. E.g. Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 33-34 (Feb. 5) (obligation of states to prohibit certain acts, such as aggression and genocide, and concerning "basic rights of the human person, including protection from slavery and racial discrimination" are erga omnes, and thus constitutes a state's obligation "towards the international community as a whole").

Therefore, in order to uphold its obligations to protect human rights, the United States must not deport non-citizens to countries without functioning central governments, where their human rights cannot be protected.

In conclusion, AILA and AILF oppose the joint DHS and DOJ proposed rule for the reasons stated above.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

AMERICAN IMMIGRATION LAW FOUNDATION LEGAL ACTION CENTER

 
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