Supreme Court Sending Immigration Message ? Deport Deportable Aliens

By Bill West

Recent Supreme Court immigration related cases make it clear the Court supports treating aliens fairly and humanely and with appropriate judicial due process; but a Somali case originating in Minnesota also makes it clear the Court believes aliens who are finally adjudicated deportable should be removed from the United States and the decision gives wider authority and latitude to the Executive Branch of the Government to do just that.

The US Supreme Court recently decided that certain criminal aliens who had been indefinitely detained after having final deportation orders rendered against them, because their home countries refused to accept them, had to be released by the Government after a certain reasonable period of time. This decision mostly affected Cuban criminals, some of who entered the US during the Mariel boatlift in the early 1980s.

A fewer number of other nationalities were also facing similar circumstances, such as alien criminals from Vietnam and Somalia. A separate, somewhat different case was pending before the Court involving a Somali criminal from Minnesota who had been a refugee and was subsequently convicted of a crime that rendered him deportable from the US. This case was JAMA v. Immigration and Customs Enforcement. Jama was ultimately placed under a final removal order by the Immigration Court, but appealed that order all the way to the Supreme Court, claiming he could not be deported to Somalia because, essentially, Somalia had no viable government and therefore could not officially accept his return.

On January 12, 2005, the Supreme Court, in a 5 to 4 decision, ruled against the Somali alien and decided the US Government could deport him to Somalia notwithstanding the conditions in that country. The ruling, however, is notably broad and affirms the clear meaning of the Federal statute dealing with the Government�s authority to remove deportable aliens to designated countries.

An excerpt from the decision is noteworthy:

To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to this Court's customary policy of deference to the President in foreign affairs, and would not be necessary to ensure appropriate consideration to conditions in the country of removal, since aliens facing persecution or other mistreatment have a number of available remedies.

The Court made a clear statement, again, deferring to the Executive Branch on immigration related matters and linking those matters to foreign policy. The decision, however, clearly clears the way for the deportation of aliens who are under final removal orders to not only Somalia but to other countries where the aliens may not have �acceptance� before being deported.

The Court has given the Executive Branch broader immigration enforcement authority with this decision, broader authority that may well factor into the Government�s counter-terrorism efforts, since many terrorist-producing countries are not ready, willing or �able� to accept their deportable citizens back.

Taken in conjunction with its other recent decision requiring the release of long-term detained criminal aliens (who are not deported essentially for foreign policy reasons) the Court may well be sending another clear message�that the real solution is not to backlog and warehouse illegal and deportable aliens who go through the removal court process and have final deportation orders; the answer is to actually deport them, whether their home countries want them back or not.

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