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IMMIGRATION

The entrance into a country of foreigners for purposes of permanent residence. The correlative term emigration denotes the act of such persons in leaving their former country.

Clark v. Martinez

Under U.S. immigration law, an alien who enters the country must be inspected by an immigration official to determine whether he is eligible for admittance. If there is doubt about the person's background, immigration officials must initiate removal proceedings to determine admissibility. An alien may be detained or placed on parole during the removal proceedings. If the person is deemed to be inadmissible, under federal law, 8 U.S.C.A. §1231(a)(1)(A), he or she must be removed from the U.S. within 90 days. However, this solution becomes problematic when the alien's home country refuses to accept his or her return, or when that country does not have a repatriation treaty with the United States. This has led to the indefinite detention of aliens with criminal records in federal immigration facilities. Critics have charged that this confinement violates the Due Process Clause and that it entitles aliens to seek release through the use of the writ of habeas corpus. In Clark v. Martinez, __U.S. __, 125 S.Ct. 716, __ L.Ed.2d __ (2005), the U.S. SUPREME COURT ruled that the law did not permit open-ended detention of aliens under these circumstances.

Sergio Martinez and Daniel Benitez fled Cuba in June 1980 as part of the Mariel boat lift. Cuban leader Fidel Castro allowed many Cubans to flee the island, but he emptied Cuban prisons and asylums and encouraged inmates to leave as well. Martinez and Benitez eventually applied for permanent residency status, but by the time of their applications they had been convicted of serious crimes. In 2000, immigration officials began removal proceedings against Martinez; an immigration judge ordered him to return to Cuba because of his criminal record. Because Cuba refused to accept the return of persons such as Martinez, he remained in custody beyond the 90-day removal period. Immigration officials took Benitez, who had been ordered to return in 1994, into custody after he completed a state prison term. He was kept beyond his 90-day period, but by October 2004 he had been paroled for a one-year term. Both men filed for a writ of habeas corpus, challenging their long detentions. An Oregon federal district court ordered Martinez released, but a Florida federal district court denied Benitez's request. The split decision was repeated on appeal by the Ninth and Eleventh Circuits, which led to the Supreme Court review of the issue.

The Supreme Court, in a 7-2 decision, agreed with Martinez and the Ninth Circuit that inadmissible aliens could not be held indefinitely after a court has issued a removal order. Justice Antonin Scalia, in his majority opinion, relied on the Court's decision in Zadvydas v Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), which examined removal proceedings and detention for persons who had been lawfully admitted to the United States. In Zadvydas, the Court had held that the civil detention of aliens could not be justified in light of the law's stated purposes: the needs to prevent the flight of the alien and to protect the community. A person in this situation most likely had nowhere to flee. As for community protection, the Court agreed that this was a valid purpose, but noted that civil confinement for persons who could not return to their country of origin is not limited, but potentially permanent. The Court declared that it was unlikely that Congress had believed that all removals could be accomplished in 90 days, but there is reason to believe that it doubted the constitutionality of more than six months' detention. Therefore, for the sake of uniform administration in the federal courts, immigration authorities could hold an alien who was ordered for removal for up to six months. After that period, the alien could file a petition for habeas corpus and seek to show there was no significant likelihood of removal in the reasonable foreseeable future. If the government failed to rebut that showing, the alien would be released from confinement.

Justice Scalia concluded that the same reasoning applied to Martinez and Benitez, even though they had not been lawfully admitted. To create different meanings for the two categories of persons held under removal proceedings would be to invent a statute rather than interpret one. The government had argued that Zadvydas should not be considered authoritative because the Court had stated that aliens who have not yet gained initial admission to this country would present a very different question. Justice Scalia rejected this reading, finding that the Court had merely reserved the question presented by Martinez and Benitez for a later answer. A reading of the statute made clear that there was no distinction between admitted and non-admitted aliens; therefore, the answer was the same in both Zadvydas and the cases of Martinez and Benitez. If the government's expressed concerns about national security were compelling, Congress could amend the immigration law.

Justice Clarence Thomas, in a dissenting opinion joined by Chief Justice WILLIAM REHNQUIST, argued that Zadvydas had been wrongly decided. In addition, the Court's decision ignored distinctions expressed in Zadvydas that limited the reach of the ruling to a specific group of aliens.

Jama v. Immigration and Customs Enforcement

The U.S. government is empowered to send immigrants back to their country of origin if they have entered the U.S. illegally or if they have committed crimes while residing in the United States. Complications arise when a foreign government refuses to accept the person. Federal law sets out procedures for handling such refusals, but it remains silent on what to do when the foreign country lacks a government. The U.S. SUPREME COURT clarified this issue in Jama v. Immigration and Customs Enforcement, __U.S. __, 125 S.Ct. 694, __ L.Ed.2d __ (2005), ruling that the U.S. government could deport an alien to Somalia, even though that country lacked a working government that could decide whether it wanted to accept the alien. In so ruling, the Court cleared the way for the deportation of thousands of Somalis who had entered the U.S. illegally during the 1990s, when a brutal civil war dissolved Somalia's central government.

Keyse Jama was born in Somalia but was admitted to the United States as a political refugee. He settled in Minneapolis, Minnesota, with many other Somali refugees but was convicted of felony assault. In 2000, immigration authorities terminated Jama's refugee status due to his criminal conviction and sought to have him removed from the United Sates. Jama did not dispute the criminal conviction as grounds for his deportation at an administrative hearing, but he sought to invoke other reasons, including political asylum, to remain in the United States. He also refused to name a country to which he preferred to be deported. The immigration judge ruled in favor of the government and ordered that Jama be deported to Somalia, his country of birth and citizenship.

After he exhausted his administrative appeals, Jama filed a habeas corpus lawsuit in federal district court, arguing that under federal law he could not be deported to Somalia. He based this claim on three grounds: Somalia did not have a functioning government; the lack of a government meant that Somalia could not consent in advance to his removal; and the federal government lacked the authority to remove him if the country did not provide advance consent. The district court agreed, noting that the U.S. government had failed to show a single case in which a federal court has sanctioned the removal of a legally admitted alien to a country that has not agreed to accept him. The U.S. Court of Appeals for the Eighth Circuit reversed the district court's decision, ruling that federal law does not require acceptance by the destination country.

The Supreme Court, in a 5-4 decision, upheld the Eighth Circuit's decision. Justice Antonin Scalia, in his majority opinion, based his decision on a textual reading of the applicable immigration statute, §1231(b)(2), which describes the procedures by which the Secretary of Homeland Security may remove an alien. The complex set of procedures gives the government the authority to remove a person to the country of which he is a citizen unless that government fails to inform the U.S. within 30 days whether it will accept the person or states that it will not accept the person. In that case, the following section of the law authorized removal to a person's country of birth. This was the case with Jama, who pointed to another section of the statute that stated that the government could deport him to another country whose government will accept the alien into that country. He contended that this acceptance requirement applied to all of the removal options available to the federal government. Therefore, he could not be deported to Somalia, his country of birth.

Justice Scalia rejected this statutory construction. The section that Jama had cited for acceptance by a country only applied to that particular section of the statute. The section authorizing removal to the alien's country of birth did not promise removal based on acceptance, and the Court could not read such a condition into the section. Scalia stated that the Court would not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, especially when Congress had made those requirements manifest in other sections of the law. In the area of immigration, the Executive Branch must be granted broad authority. Scalia concluded that to infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the president in matters of foreign affairs.

Justice DAVID SOUTER, in a dissenting opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and STEPHEN BREYER, argued that the majority had misread the history of removal. He contended that the law had been interpreted to require that the destination country accept the deported alien.

The government attempted to deport Jama to Somalia in April 2005, but the local Somali authorities in Bossasso refused him entry. Jama returned to the United States and remains in a Minnesota jail cell pending further proceedings.

Leocal v. Ashcroft

U.S. immigration authorities have statutory power to deport lawful permanent residents from the United States if they are convicted of serious crimes. However, the federal courts have been divided as to whether authorities may deport aliens who have been convicted of driving under the influence of alcohol (DUI) or who have caused serious bodily injury in a traffic accident. The federal statute allows deportation for "crimes of violence," with the courts split over whether such a crime required an intentional act or merely negligence. The U.S. SUPREME COURT, in Leocal v. Ashcroft, __U.S. __, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), resolved the issue, ruling that a DUI offense was not a crime of violence and therefore was not a deportable crime.

Josue Leocal, a Haitian citizen, immigrated to the United States in 1980 and became a lawful permanent resident in 1987. In 2000, Leocal was charged by the state of Florida with two counts of DUI causing serious bodily injury, Fla. Stat. §316.193(3)(c)(2). Leocal had been involved in an accident that injured two people. He pleaded guilty and served two-and-one-half years in prison. While he was incarcerated, federal immigration officials began proceedings to remove him from the United States. The removal action was based on §237(a) of the Immigration and Nationality Act (INA), 18 U.S.C.A. §1101 et seq., which states that an alien convicted of an aggravated felony is deportable. Section 101(a)(43) defined "aggravated felony" to include a "crime of violence" as defined in 18 U.S.C.A §16. Section (a), in turn, defined a "crime of violence" to mean "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." In the alternative, §(b) defined it as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Immigration authorities argued that the DUI was a crime of violence and convinced an immigration judge to have Leocal deported to Haiti in 2002 upon his release from a Florida prison. Leocal appealed this decision to the U.S. Court of Appeals for the Eleventh Circuit, which upheld his removal.

The U.S. Supreme Court, in a unanimous opinion, reversed the Eleventh Circuit's ruling. Chief Justice WILLIAM REHNQUIST, writing for the Court, noted that one court of appeals had agreed with the Eleventh Circuit but that four others had ruled that a DUI offense was not a crime of violence. Rehnquist pointed out that 18 U.S.C.A §16 was part of the Comprehensive Crime Control Act of 1984, 98 Stat. 2136, a federal statute that imposed broad reforms on the federal criminal code. The general definition contained in §16 was used throughout the act and had been incorporated into many criminal and non-criminal laws since it was first passed.

In examining the application of the definition to Leocal, Rehnquist made clear that the Court could not look at the "particular facts" relating to his crime but that it had to confine itself to the "elements and nature of the offense of conviction." The Florida DUI statute did not require proof of any particular mental state, which would signal intent by the defendant to commit the crime. Instead, the statute only required that the defendant cause "serious bodily injury to another." Leocal argued that §16(a) did not apply to his act because it required the "use" of physical force and that term was meant to connote the intentional availment of force, which was not part of the Florida DUI statute. The federal government attempted to use dictionaries, laws and U.S. Supreme Court decisions to prove that causing injury and not an intentional act was within the definition of "use."

Chief Justice Rehnquist concluded that the case did not turn on whether the word "use" alone supplied a criminal-intent element. Instead, he sought to place the word in context and "in light of the terms surrounding it." Understood this way, it made little sense to think of a person actively employing something in "an accidental manner." For example, a person would "use" physical force if he pushed someone, but he would not "use" force in the ordinary meaning of the term if he stumbled and fell into another person. Giving words their "ordinary and natural" meaning is a key part of statutory interpretation, and therefore the word "use" "most naturally suggests a higher degree of intent than negligent or merely accidental conduct."

Turning to §16 (b), Rehnquist agreed that this section defined a crime of violence more broadly than §16 (a). However, this section included offenses that required a substantial risk of physical force in the course of committing the crime. It made no "natural" sense to assert that a person "risks having to 'use' force against another person in the course of operating a vehicle while intoxicated and causing injury." Therefore, neither part of §16 could justify categorizing DUI offenses as "violent, active crimes." Although drunk driving is a national problem, that fact did not "warrant…shoehorning it into statutory sections where it does not fit."