FIL ED

No. 03-35096 _A_ 2/_ 200_

r SON, CLERKIN THE UNITED STATES COURT OF APPEALS U.S. COUFITOFAPpE,_LS

FOR THE NINTH CIRCUIT

YUSUF ALl ALI, et al.,

Petitioners-Appellees,

V.

TOM RIDGE, Secretary, Department of Homeland Security; Bureau of Immigration and

Customs Enforcement; MICHAEL GARCIA, Assistant Secretary (Designee), Bureau of

Immigration and Customs Enforcement; AARON G. WILSON, Interim District Director

for Interior Enforcement, Bureau of Immigration and Customs Enforcement,

Respondents-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

(Civ. No. 02-2304P - District Judge Pechman)

BRIEF FOR RESPONDENTS-APPELLANTS

ROBERT D. MCCALLUM, JR.

Assistant Attorney GeneralCivil Division

DAVID J. KLINE

Principal Deputy Director

GREG D. MACK

Senior Litigation Counsel

Office of Immigration Litigation

Civil Division, Department of JusticeP.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

(202) 616-4858

Attorneys for Respondent

TABLE OF CONTENTS

STATEMENT OF JURISDICTION ....................................................................... 1

STATEMENT OF THE ISSUES ............................................................................ 3

STATEMENT OF THE CASE ................................................................................ 5

I. Nature of the Case ..................................................................... _......... 5

II. Statement Of The Relevant Facts ........................................................ 7

A. The Government Has Removed Aliens To Somalia ................. 7

B. The Named Petitioners-Appellees ............................................ 9

SUMMARY OF THE ARGUMENT .................................................................... 11

ARGUMENT ......................................................................................................... 13

I. Standard Of Review .......................................................................... 13

II. The District Court Lacked Jurisdiction To Review The Habeas

Petition .............................................................................................. 15

A. Petitioners-Appellees Did Not Object To Somalia As Their

Country Of Removal In Their Administrative Proceedings,And Therefore They Failed To Exhaust Their AdministrativeRemedies ................................................... .............................. 15

B. Habeas Jurisdiction In The District Court Was Foreclosed

By 8 U.S.C. § 1252(g) ............................................................ 20

C. The District Court Erred In Certifying A Nation-wide Class

Because 8 U.S.C. § 1252(0(1) Bars All Courts, Except The

Supreme Court, From Enjoining The Enforcement And

Operation Of 8 U.S.C. § 1231(b) ............................................ 27

III. The District Court Erroneously Added An AcceptanceRequirement To The Removal Options Available To TheAttorney General Under 8 U.S.C. § 1231(b)(2)(E) ........................... 31

Ao The Plain Language Of The Statute Authorizes Removal

To An Alien's Country Of Birth Without Acceptance By That

Country ................................................................................... 31

° Section 1231 (b)(2)(E)(iv) Authorizes Removal To An

Alien's Country Of Birth .............................................. 31

° The Second Circuit's Decision In Tom Man Does Not

Govem The Unique Circumstances Presented In ThisCase .............................................................................. 39

, , A 1950 Committee Report Cannot Control The

Statutory Interpretation Of Congress' 1996 ReformOf The INA ................................................................... 42

o The District Court Erroneously Applied International

Law To Override, Rather Than Complement,

Congressional Intent ..................................................... 44

IV. The District Court Improperly Certified A Nation-wide Class ......... 46

A° The Attorney General And The Commissioner Of The INS

Are Not Proper Custodians-Respondents ............................... 47

Co Neither The Supreme Court Nor This Court Have Authorized

Habeas Class Actions That Extend Beyond A District Court's

Geographical Boundaries ........................................................ 51

Do A Habeas Class In This Case Cannot Be Sustained Through

Next-Friend Standing .............................................................. 53

E° Federal Rule Of Civil Procedure 23 Does Not Apply ToHabeas Actions ....................................................................... 58

ii

V. Zadvydas Relief Should Be Denied Where The Sole ImpedimentTo Removal From The United States Is The Alien's Conduct In

Securing An Injunction Barring Removal .. ....................................... 59

CONCLUSION ...................................................................................................... 60

CERTIFICATE OF COMPLIANCE

STATEMENT OF RELATED CASES

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES

CASES

Akiak Native Communit 3, v. U.S. Postal Service,

• 213 F.3d 1140 (9th Cir. 2000) ..................................................................... 38

American Immigration Lawyers' Association v. Reno,

199 F.3d 1352 (D.C. Cir. 2000) ........................................................... ........ 27

Arizona Electric Power v. United States,

816 F.2d 1366 (9.th Cir. 1987) ............................................................... 35, 43

Barrera-Echavarria v. Rison,

44 F.3d 1441 (9th Cir. 1995) ....................................................................... 45

Barry. v. Brower,

864 F.2d 294 (3d Cir. 1998) ........................................................................ 57

Braden v. 30th Judicial Circuit Court,

410 U.S. 484 (1973) .................................................................................... 48

Brittingham v. United States,

982 F.2d 378 (9th Cir. 1992) ....................................................................... 48

Califano v. Yamasaki,

442 U.S. 682 (1979) .................................................................................... 52

Castro-Cortez v. INS,

239 F.3d 1037 (9th Cir. 2001) ..................................................................... 19

Catholic Social Services, Inc. v. INS,

182 F.3d 1053 (9th Cir. 1999), affd in part and rev'd in part,

232 F.3d 1139, 1150 (9th Cir. 2000) ........................................................... 28

Chevron v. U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) .................................................................................... 13

iv

Coalition of Clery, Lawyers, and Professors v. Bush,

310 F.3d 1153 (9th Cir. 2002) ..................................................................... 54

Dare v. California,

191 F.3d 1167 (9th Cir. 1999) ..................................................................... 13

Demjanjuk v. Meese,,784 F.2d 1114 (D.C. Cir. 1986) ................................................................... 47

Doe v. Tenet,

99 F. Supp. 2d 1284 (W.D. Wash. 2000) .................................................... 14

Doherty v. INS,

908 F.2d 1108 (2d Cir. 1990) ...................................................................... 16

E1 Rescate Legal Services, Inc. v. Executive Office for Immigration Review,

959 F.2d 742 (9th Cir. 1991) ................................................................................. 17

Environmental Defense Funds, Inc., v. City of Chicago,

948 F.2d 345 (7th Cir. 1991) ....................................................................... 43

Felker v. Turpin,

581 U.S. 651 (1996) .................................................................................... 25

Flores-Miramontes v. INS,

212 F.3d 1133 (9th Cir. 2000) ..................................................................... 22

Galvan v. Press,

347 U.S. 522 (1954) .................................................................................... 33

Garcia-Mir v Meese,

788 F.2d 1446 (1 lth Cir. 1986) ................................................................... 45

Gisbert v. United States, Attorney General,

988 F.2d 1122 (5th Cir. 1993) ..................................................................... 45

Grimaldo v. Reno,

187 F.R.D. 643 (D. Colo. 1999) ............................................ ...................... 29

V

Harisiades v. Shaughnessy,342 U.S. 580 (1952) ....................................................................................... 33

Hilao v. Estate of Marcos,

95 F.3d 848 (9th Cir. 1996) ........................................................................... 13

INS v. Aguirre-Aguirre,

526 U.S. 415 (1999) ................................................................................. 13, 37

INS v. St. Cyr,

533 U.S. 289 (2001) ....................................................................................... 24

Ismailov v. Reno,

263 F.3d 851 (8th Cir. 2001) ......................................................................... 26

Keene Corp. v. United States,

508 U.S. 200 (1993) ....................................................................................... 41

Lorillard v. Pons,

434 U.S. 575 (1978) ....................................................................................... 41

Lutheran Social Service of Minnesota v. United States,

758 F.2d 1283 (8th Cir. 1985) ....................................................................... 35

Magana-Pizano v. INS,

200 F.3d 603 (9th Cir. 1999) ....................................... ,................................. 24

McCarthy v. Madigan,

503 U.S. 140 (1992) ....................................................................................... 15

Mead v. Parker,

464 F.2d 1108 (9th Cir. 1972) ....................................................................... 53

Mojica v. Reno,

970 F. Supp. 130 (E.D.N.Y. 1997) ................................................................ 48

Moore v. Apfel,

216 F.3d 864 (9th Cir. 2000) ......................................................................... 44

vi

Morton v. Ruiz,

415 U.S. 199 (1974) ...................................................................................... 44

Nakaranurack v. United States.,

68 F.3d 290 (9th Cir. 1995) ........................................................................... 19

National Medical Enterprise, Inc. v. Sullivan,

957 F.2d 664 (9th Cir. 1992) ......................................................................... 37

Nguyen Da Yen v. Kissinger,

70 F.R.D. 656 (N.D. Cal. 1976) ............ .................................................. 48, 50

Padilla v. Rumsfeld,

__ F. Supp. 2d ., 2002 WL 3178308 (S.D.N.Y. 2002) ............................ 48

Reno v. American-Arab Anti-Discrimination Committee,

525 U.S. 471 (1999) .............................................................................. 20, 48

Russello v. United States,

464 U.S. 16 (1983) ........................... . .......................................................... 34

San Bemardino Mountains Community Hospital v. Secretary, Health and

Human Services., 63 F.3d 882 (9th Cir. 1995) ......................................................... 44

Schlanger v. Seamans,401 U.S. 487 (1971) ..................................................................................... 48

Schweiker v. Hansen.,

450 U.S. 785 (1981) ...................................................................................... 44

Sharif v. Ashcroft,

280 F.3d 786 (7th Cir. 2001) ......................................................................... 26

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953) ....................................................................................... 36

vii

Smith v. United States,

507 U.S. 197 (1993) ...................................................................................... 32

Stanley v. University of Southern California,

13 F.3d 1313 (9th Cir. 1994) ......................................................................... 14

Stanley v. Universi_ of Southern California,

13 F.3d 1313 (9th Cir. 1995) ......................................................................... 14

Stone v. INS,

514 U.S. 386 (1995) ............................................................................... ,....... 14

Tefel v. Reno, 972 F. Supp. 608 (S.D. Fla 1997), vacated on other grounds,

180 F.3d 1286 (llth Cir. 1999) ................................................................... 29

Theodoropoulos v. INS,

313 F.3d 732 (2d Cir. 2002) ........................................................................ 15

United States ex rel. Sero v. Preiser,

506 F.2d 1115 (2d Cir. 1974) ...................................................................... 56

United States ex rel. Tom Man v. Murff,

264 F.2d 926 (2d Cir. 1959) ........................................................................ 39

United States Parole Commission v. Geraghty,

445 U.S. 388 (1979) .................................................................................... 57

United States v. Anderson,

895 F.2d 641 (9th Cir. 1990) ................................................................ i ...... 35

united States v. Menasche.,

348 U.S. 528 (1955) .................................................................................... 42

United States v. Mendoza,

464 U.S. 154 (1984) ....................................................................................... 52

viii

Van Dinh v. Reno,

197 F.3d 427 (10th Cir. 1999) ................................................................................. 28

Vasquez v. Reno,

233 F.3d 688 (lst Cir. 2000) .......................................................................... 51

Walters v. Reno,

145 F.3d 1032 (9th Cir. 1998) ............................... , ................................. 13, 30

Webster v. Doe.,

486 U.S. 592 (1988) ...................................................................................... 22

Whitmore v. Arkansas.,

495 U.S. 149 (1990) ................................................................................. . ..... 54

Yesil v. Reno,

175 F.3d 287 (2d Cir. 1999) .......................................................................... 48

Yi v. Maugans,

24 F.3d 500 (3d Cir. 1994) ............................................................................ 50

ADMINISTRATIVE DECISIONS

Matter of Linnas,

19 I. &N. Dec. 302 1985 WL 56051 (BIA) ............................................... 40

Matter of Niesel.,

10 I. & N. Dec. 57 1962 WL 12904 (BIA 1962) .................................. 16, 40

Matter of K-V-D-,

22 I. & N. Dec. 1163 1999 WL 1186808 (BIA) ......................................... 41

DOCKETED CASES

Ghelle v. INS, E. D. La., (No. 02-3487 ) ............................................................... 50

Mohamud v. INS, et al.,

No. 03-35208 ............................................................................................... 62

ix

Mohamud v. INS,

No. 02-1686 (Rothstein, J.) .......................................................................... _ 7

STATUTES

The Immigration and Nationality Act of 1952, as amended:

8 U.S.C. § 1231(h) ............................................................................................ 35, 38

8 U.S.C. § 1252(a)(1) .......................... "..................................................................... 19

8 U.S.C. § 1252(a)(2)(C) ........................................................................................ 22

8 U.S.C. § 1231 (b)(2)(E)(iv) ...................................................................... 12, passim

8 U.S.C. § 1231(h) ............................................................................................ 35, 38

8 U.S.C. § 1252(b)(3)(B) ......................................................................................... 14

8 U.S.C. § 1252(b)(9) ............................................................................................... 21

8 U.S.C. § 1252(d)(1) ..................................................................................... 3, 11, 15

8 U.S.C. § 1252(0(1 ) ..................................................................................... 2, 12, 27

8 U.S.C. § 1252(g) ..................................................................................... 12, passim

8 U.S.C. § 1253(a) ..................................................................................... 12, passim

MISCELLANEOUS STATUTES

28 U.S.C. § 1291 ........................................................................................................ 3

28 U.S.C. § 1292(a)(1) ..................................................................................... ........ 3

28 U.S.C. § 1361 .................................................................................................... 53

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

§ 1651...................................................................................................... 49

§2241 .................................................................................. 11,15,22,25

§2241(a) ............................................................................................... 51

§2242 ........................................................................................ 53,55,58

§ 2243 ............................................................................................ 4; 12,48

§ 2244(b)(3)(E) ....................................................................................... 25

REGULATIONS

8 C.F.R. § 3.0 (2002) ............................................................................................... 17

8 C.F.R. § 3.1(a)(1) (2002) ..................................................................................... 17

8 C.F.R. § 100.1 (2002) ........................................................................................... 17

8 C.F.R. § 100.2 (2002) ............................................................................................ 17

8 C.F.R. § 3.1(d)(1) (2002) ................................................ . ..................................... 17

8 C.F.R. § 3.2(c) (2002) ........................................................................................... 19

8 C.F.R. § 3.23(b) (2002) ......................................................................................... 19

8 C.F.R. § 208.16(2002) ............................................................................................. 9

8 C.F.R. § 240.10(f) (2002) ..................................................................................... 18

8 C.F.R. § 240.10(g) (2002) ..................................................................................... 37

8 C.F.R. § 241.4(k)(1)(i) (2002) .............................................................................. 44

xi

MISCELLANEOUS

S. Rep. No. 48, 104th Cong., 1st Sess., 1995 WL 170285 .................................... 36

S. Rep. No. 104-48, 1995 WL 170285 (April 7, 1995) ......................................... 43

Fed. R. Civ. P. 81(a)(2) (2003) ................................................................................ 58

H.R. Rep. No. 104-469 ............................................................................................. 30

xii

No. 03-35096

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YUSUF ALl ALI, et al.,

Petitioners-Appellees,

Vo

TOM RIDGE, Secretary, Department of Homeland Security; Bureau of

Immigration and Customs Enforcement; MICHAEL GARCIA, Assistant

Secretary (Designee), Bureau of Immigration and Customs Enforcement;

AARON G. WILSON, Interim District Director for Interior Enforcement,

Bureau of Immigration and Customs Enforcement

Respondents-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

(Civ. No. 02-2304P - District Judge Pechman)

BRIEF FOR RESPONDENTS-APPELLANTS

STATEMENT OF JURISDICTION

On January 17, 2003, the District Court granted the amended, consolidated

petition for a writ of habeas corpus filed by Petitioners Yusuf AIi Ali, Mohamed

Aweys and Mohamed Hussein Hundiye, enjoined the United States government

from removing to Somalia the four named Petitioners-Appellees and a nation-wide

class of aliens, and directed that three of the named Petitioners-Appellees be

released from the custody of the Immigration and Naturalization Service ("INS").I

See Excerpt of Record ("ER"), Tab G. Specifically, the District Court issued a

permanent injunction barring the government's removal of "all persons in the

United States who are subject to orders of removal, expedited removal, deportation

or exclusion to Somalia that are either final or that one or more Respondents

believe to be final, excluding any person with a habeas petition pending, or on

appeal, raising the issue of unlawful removal to Somalia under 8 U.S.C. § 1231(b)."

ER, Tab G at 2. Further, the District Court certified the foregoing class over the

Respondents-Appellants' jurisdictional objections that under 8 U.S.C. § 1252(0(1)

no court, except for the Supreme Court, could assert jurisdiction over class-wide

claims concerning the enforcement and operation of Section 123l(b).

' 'The petition for writ of habeas corpus filed in this case identified JohnAshcrofl, Attorney General of the United States; James Ziglar, Commissioner ofthe INS; the INS; and Robert S. Coleman, Jr., INS District Director, Seattle,Washington, as respondents in this case. Effective March 1, 2003, the INS wasabolished and its immigration enforcement functions were transferred to theDepartment of Homeland Security, specifically the Bureau of Immigration andCustoms Enforcement. See generally Homeland Security Act of 2002, 6 U.S.C.

§ 101,251,252, Pub. L. 107-296 §§ 101 et se_, 116 Stat. 2135 (Nov. 25, 2002).

This Court's jurisdiction to review the District Court's January 17, 2003

order derives from 28 U.S.C. §§ 1291 and 1292(a)(1), which provide the courts of

appeals with jurisdiction over appeals from all final judgments of the district courts

and from a grant of injunctive relief, respectively. In the instant case, the District

Court's permanent injunction is a final judgment which disposed all of the issues

before that court. Respondents filed a timely notice of appeal on February 7, 2003.

On February 19, 2003, this Court granted Respondents-Appellants' motion

to expedite briefing and consideration of this appeal, and directed Respondents-

Appellants to file their opening brief no later than March 21, 2003, and stated that

upon completion of briefing this matter will be submitted to the next available panel

for oral argument.

STATEMENT OF THE ISSUES

1. Whether pursuant to 8 U.S.C. § 1252(d)(1), the District Court lacked

subject matter jurisdiction over this case, where Petitioners-Appellees and members

of the class failed to exhaust their administrative remedies through challenging the

designation of Somalia as their country of removal in proceedings before the

Immigration Judge and the Board of Immigration Appeals, which is a condition

which must be satisfied prior to seeking judicial review of any claim or action

arising from the execution of an order of removal.

3

2. Whether 8 U.S.C. § 1252(g) precluded the District Court from asserting

habeas jurisdiction over Petitioners-Appellees' challenge to their and class

members' removal to Somalia, where this claim arose from the Attorney General's

decisions and actions related to execution of their final orders of removal and such

claims are to be reviewed exclusively in this Court through petitions for

review.

3. If the Court nevertheless finds that the District Court had habeas

jurisdiction, whether the District Court erred in concluding that 8 U.S.C.

§ 1231 (b)(2)(E), whose plain language provides for removal of aliens to their

country of birth, did not authorize the removal of Petitioners-Appellees and class

members to Somalia without first obtaining the acceptance from the government of

Somalia.

4. Whether the Attorney General and the Commissioner of the INS were,

contrary to 28 U.S.C. § 2243, erroneously designated as custodians-respondents in

this case, where they were not the immediate custodians of, and lacked day-to-day

control over, Petitioners-Appellees.

5. In the event this Court concludes that the District Court had habeas

jurisdiction is not erroneous, whether the District Court improperly certified this

matter as a class action devolving benefits of its permanent injunction to a nation-

4

wide class of aliens subject to removal to Somalia.

STATEMENT OF THE CASE

I. Nature of the Case

• The named Petitioners-Appellees are four Somali nationals who have been

ordered removed from the United States after having had the opportunity to apply

for relief or protection from removal and for hearings before Immigration Judges

and administrative appeals to the Board of Immigration Appeals ("Board" or

"BIA"). Three of the named petitioners have been convicted of serious crimes and

were ordered removed based on those convictions. Further, despite being subject

to final orders of removal, Petitioners-Appellees could have, but have not, sought

Temporary Protected Status ("TPS"), which is available to eligible aliens when

returning to their country "would pose a serious threat to their personal safety." See

8 U.S.C. § 1254a et seq. 2

Although Petitioners-Appellees had these administrative remedies and could

have contested the designation of Somalia as the country of removal at their

immigration hearings, they failed to do so. Instead, after discovering that the

2 On July 26, 2002, the Attorney General extended his September 4, 2001

designation of Somalia as a country for which eligible Somali nations could obtain

TPS. See 67 F.R. 48950 (Jul. 26, 2002); 2002 WL 1723312 (FR).

Attorney General was executing their orders of removal, they filed a consolidated

petition for a writ of habeas corpus in the United States District Court for the

Western District of Washington on November 13, 2002. Accompanying their

habeas petition was a motion for temporaryrestraining order, seeking to enjoin their

removal to Somalia. The District Court granted this motion, and ultimately set a

deadline of December 16, 2002, for the Respondents-Appellants to respond to

Petitioners-Appellees' consolidated petition.

On November 26, 2002, Petitioners-Appellees filed an amended complaint

and consolidated petition for writ of habeas corpus, and requested class-wide relief

to enjoin removal to Somalia on behalf of themselves and any other alien subject to

a final order of removal to Somalia. Thereafter, Petitioners-Appellees filed a

motion for a temporary restraining order to enjoin the removal of Somali nationals

to Somalia pending resolution of their amended complaint and petition. On

December 5, 2002, the District Court, upon stipulation of the parties, granted the

temporary restraining order, directed the Respondents-Appellants to file a response

to Petitioners-Appellees' request for injunctive relief no later than 12:00 p.m. (PST)

on December 9, 2002, and scheduled a telephonic heating on the motion for a

temporary restraining order for December 9, 2002, at 3:00 p.m. (PST). After

considering the parties' memoranda and heating oral argument, the District Court

6

issued a written ruling on December 10, 2002, which granted Petitioners-Appellees'

request for class-wide injunctive relief restraining the government from removing

aliens to Somalia.

After receipt of Respondents-Appellants' return and response, Petitioners-

Appellees' traverse and reply and oral argument, the District Court, on January 17,

2003, issued a permanent injunction enjoining removal of Petitioners-Appellees and

the class described above. In addition, the District Court ordered the government

to release all of the named Petitioners-Appellees, except for Petitioner-Appellee

Gama Mohamud. The District Court declined to grant Mohamud's release because

he had a habeas petition pending before another judge of the same court? See

Mohamud v. INS, No. 02-1686 (Rothstein, J.). The District Court then denied the

government's motion to stay its order pending appeal.

II. Statement Of The Relevant Facts

A. The Government Has Removed Aliens To Somalia.

The INS has removed Somali nationals to Somalia, notwithstanding

Somalia's lack of a central government. ER, Tab C at 130A, ¶ 4. Accordingly,

3 On February 12, 2003, Judge Rothstein granted Petitioner-Appellee

Mohamud's habeas petition and ordered his release from custody pursuant to the

District Court's decision in this case. On March 7, 2003, the government appealed

Judge Rothstein's decision.

except for the District Court's order and orders in other judicial districts, there is no

impediment to the government's removal of Petitioners-Appellees and other Somali

nationals to Somalia. While Somali nationals have been removed via commercial

aircraft where they choose to comply with their order of removal, the typical mode

of transporting Somali nationals to Somalia has been through the services Of charter

airline companies. Id____.at ¶¶ 8, 9. INS personnel may accompany Somali nationals

to a third country, prior to their ultimate removal to Somalia. Id____.Thereafter,

where an alien is not traveling to Somalia via commercial aircraft, the charter airline

company personnel take over and the Somali nationals are taken to Somalia. Id_.__.

Since the terrorist attacks on the United States on September 11, 2001, the

government's responsibility to protect the United States and secure its borders have

heightened the need to ensure that aliens subject to lawful, final orders of removal

are, in fact, removed from the United States. That an alien has not been specifically

charged with a terrorism-related offense serves as no reason to be less than vigilant

in the government's efforts to remove aliens from our shores. This is particularly

true for aliens from countries like Somalia, where terrorists are indicated to be

present, and U.S. troops are stationed near Somalia and are monitorinG its borders

to interdict terrorists flowing into and out of that country. See ER, Tab C at 133-

63; Appendix, Exhibit A.

8

B. The Named Petitioners-Appellees.

1. Petitioner-Appellee Yusuf Ali Ali, a native and citizen of Somalia, was

ordered removed from the United States by an immigration judge on July 10, 2001.

ER, Tab C at 7. Ali Ali is subject to removal for violating Sections

212(a)(2)(A)(i)(II) and 212(a)(6)(A)(i) of the Immigration and Nationality Act

("INA"), 8 U.S.C. §§ 1182(a)2)(A)(i)(II), 1182(a)(6)(A)(i), in that he was present in

the United States without being admitted or paroled by the INS and he had been

convicted of a controlled substance violation. ER, Tab C at 9. The immigration

judge denied Ali Ali's applications for asylum (8 U.S.C. § 1158(b)), withholding of

removal (8 U.S.C. § 1231 (b)(3)), and protection under the Convention Against

Torture (8 C.F.R. § 208.16-208.18 (2002)), wherein he claimed to fear persecution

and torture in Somalia. Id_.._,.at 7. All Ali waived appeal of the immigration judge's

order of removal, and therefore the order became administratively final on July 10,

2001. Id____.;see also 8 C.F.R. § 241.1(b) (2002).

2. Petitioner-Appellee Mohamed Aweys, a native and citizen of Somalia,

entered the United States as a visitor on the basis of a Finnish passport, with

authorization to visit the United States until January 6, 1996. ER, Tab C at 9. After

Aweys failed to depart on January 6, 1996, and he admitted that he misled the INS

by providing his father's surname in an asylum application, an immigration judge

9

ordered him removed in absentia for failing to appear at a removal hearing and for

violating Section 237(a)(1)(A) of the INA, 8 U.S.C. § 1227(a)(1)(A), because he

procured a visa, or other documentation, or admission into the United States by

fraud or by willfully misrepresenting a material fact in violation of Section

212(a)(6)(C)(i) of the INA, 8 U.S.C. § 1182(a)(6)(C)(i). ER, Tab C at 9. The

immigration judge also rejected Aweys' application for withholding of removal

because it was deemed abandoned on account of his failure to appear for his

hearing. Id.____.

3. Petitioner-Appellee Gama Kalif Mohamud, a native and citizen of

Somalia, entered the United States on November 8, 1996, as a refugee. ER, Tab C

at 14. On April 21, 2000, an immigration judge ordered that Mohamud be removed

from the United States. Id. at 29. Mohamud waived appeal of this decision. Id..___.

4. Petitioner-Appellee Mohamed Hussein Hundiye, a native and citizen of

Somalia, was admitted to the United States on or aboutDecember 8, 1992, as a

lawful permanent resident. ER, Tab C at 42. On April 26, 2001, an immigration

judge ordered Hundiye removed to Somalia for violating Section 237(a)(2)(A)(iii ) of

the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an

aggravated felony, to wit, burglary with a term of imprisonment of at least one year.

Id__,.at 46. The immigration judge also denied Hundiye's applications for asylum and

10

protection under the Convention Against Torture. Id___.at 47. Petitioner Hundiye

did not appeal the immigration judge's order. Id____.

5. On or about November 7, 2002, Petitioners-Appellees Ali Ali, Aweys,

and Hundiye were advised by the INS that their release from detention had been

revoked because their removal to Somalia was imminent. ER, Tab D. As

Petitioner-Appellee Mohamud was in custody, the INS informed him this his

removal was also imminent. Id_.__.Thereafter, the named Petitioners-Appellees filed

the habeas petition on November 13, 2002, which led to this appeal.

SUMMARY OF THE ARGUMENT

The District Court erred in asserting subject matter jurisdiction over this case

because Petitioners-Appellees failed to exhaust their administrative remedies, in that

their objection to Somalia as their country of removal should have been asserted

before their respective immigration judges and the Board of Immigration Appeals.

See 8 U.S.C. § 1252(d)(1). Further, the District Court lacked habeas jurisdiction

under 28 U.S.C. § 2241 because Petitioners-Appellees challenge the execution of

their final orders of removal, and there is no jurisdiction to hear this challenge in the

district courts because review is channeled to the courts of appeals. See 8 U.S.C.

§ 1252(g).

The government may remove aliens to their country of birth without

.11

obtaining "acceptance" from a government of their country of birth. See 8 U.S.C.

§ 123 l(b)(2)(E)(iv). Somalia is a country, and while it lacks a central government,

removal of aliens to that country is authorized under Section 1231 (b)(2)(E)(iv). In

construing Section 123 l(b)(2)(E)(iv), the District Court statutory analysis ignored

the plain language of this statue, misapplied legislative history and international law

to add an "acceptance" requirement to the statute, and erred in relying on Second

Circuit case law construing an entirely different statute, 8 U.S.C. § 1253(a).

Further, the District Court lacked authority to issue a class-wide injunction to

restrain the operation of Section 1231(b)(2). See 8 U.S.C. § 1252(0(1). In

addition, the District Court erroneously concluded that it had authority to issue an

injunction that covered petitioners outside of its judicial district. The District Court

also erred in finding the Attorney General and the Commissioner of the INS could

be respondents in this habeas case. Moreover, the District Court failed to apply 28

U.S.C. § 2243, in that Petitioners-Appellees did not satisfy the "next-friend"

standing requirement to assert a habeas petition on behalf of absent petitioners who

did not sign the petition. The District Court also erroneously imported the class

action requirements of Federal Rule of Civil Procedure to authorize a habeas class.

Finally, Petitioners-Appellees' release from custody overrode the

government's ability to conduct an assessment of their custody status. If this Court

12

reverses the District Court's decision, Petitioners-Appellees will be removed to

Somalia, and detention will not be an issue.

ARGUMENT

I. Standard Of Review.

This Court reviews the District Court's grant of a permanent injunction for

abuse of discretion. See Dare v. California, 191 F.3d 1167, 1170 (9th Cir. 1999).

The District Court's rulings of law underlying the grant of the injunction are

reviewed de novo, and factual findings are reviewed under the clearly erroneous

standard. See Waiters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998); Hilao v._

Estate of Marcos, 95 F.3d 848, 850 (9th Cir. 1996). Questions surrounding the

construction of the INA require a reviewing court to apply the plain language of the

statute or, where it is ambiguous, the principles of deference announced in Chevron

v. U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842

(1984). See INS v. Aguirre-Aguirre, 526 U.S. 415,424 (1999). In interpreting the

INA, Congress has stated that "determination[s] and ruling[s] by the Attorney

General with respect to all questions of law shall be controlling." 8 U.S.C. §

1103(a)(1).

13

The District Court issued a mandatory injunction in this case. 4 Mandatory

injunctions are disfavored, and they should be denied, "unless the facts and the law

clearly favor them." _See Stanley v. University of Southern California, 13 F.3d

1313, 1319-20 (9th Cir. 1994). The District Court erred in not imposing a

heightened burden on Petitioners-Appellees to show that the facts and the law

"clearly favor" a mandatory injunction. See Stanley, 13 F.3d at 1320.

4 Petitioners-Appellees' orders of removal are self-executing, requiring no

judicial enforcement. See Stone v. INS, 514 U.S. 386, 397 (1995). In fact, a

judicial stay is required to bar the Attorney General's execution of a removal order.

See 8 U.S.C. § 1252(b)(3)(B). Therefore, the District Court's orders exceeded

preserving the status quo pendente lite, as Petitioners-Appellees stood on the

precipice of removal from the United States, with no judicial, practical, or other

impediment to their removal. See Doe v. Tenet., 99 F. Supp. 2d 1284, 1294 (W.D.

Wash. 2000) ("When, however, a party seeks injunctive relief that goes beyond

preservation of the status quo, and has the effect of requiring affirmative action by

the party enjoined, the relief requested is characterized as a mandatory injunction.")

(citing Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993)).

14

II. The District Court Lacked Jurisdiction To Review The Habeas

Petition.

A. Petitioners-Appellees Did Not Object To Somalia As Their

Country Of Removal In Their Administrative Proceedings, And

Therefore They Failed To Exhaust Their AdministrativeRemedies.

Petitioners-Appellees' failure to seek administrative review of Somalia as

their country of removal before they challenged the execution of their removal

orders to Somalia in the district court constitutes a failure to exhaust administrative

remedies. See 8 U.S.C. § 1252(d)(1). The exhaustion of administrative remedies is

mandatory, and therefore not subject to any exception, where Congress has

required exhaustion. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992).

Accordingly, the District Court erred in asserting habeas jurisdiction under 28

U.S.C. § 2241 over this case by failing to require Petitioners-Appellees to comply

with 8 U.S.C. § 1252(d)(1). See Madigan, 503 U.S. at 144; see also

Theodoropoulos v. INS, 313 F.3d 732, 737 (2d Cir. 2002) (stating that "an alien's

waiver of the fight to appeal to the BIA is a failure to exhaust administrative

remedies for jurisdictional purposes[,]" and therefore precludes habeas review in

the federal district courts) (construing 8 U.S.C. § 1252(d)(1)).

In the instant case, Petitioners-Appellees' claims arise from the

Respondents-Appellants' efforts to execute their orders of removal to Somalia.

15

Further, their claims necessarily challenge the removal order as an infirm instrument

to effect their removal. Therefore, the District Court erroneously concluded that

the instant petition did not involve a challenge to the Petitioners-Appellees' orders

of removal. Accordingly, prior to invoking the District Court's habeas jurisdiction,

Petitioners-Appellees should have raised the alleged infirmity of the order Of

removal with their respective immigration judges and the Board of Immigration

Appeals either in their initial proceedings or through a motion to reopen their

proceedings. Cf. Doherty v. INS, 908 F.2d 1108, 1111 (2d Cir. 1990) (noting that

the alien "decided to take advantage" of his opportunity to select the country to

which he will be deported and litigated the "country of deportation" issue before

the immigration judge, the Board, and the courts); Matter of Niese_l, 10 I. & N. Dec.

57 (BIA 1962), 1962 WL 12904 (BIA 1962) (considering whether acceptance of an

alien's deportation is required). Instead, Petitioners-Appellees' resorted to an

extraordinary mechanism - a petition for writ of habeas corpus - to frustrate the

execution of their orders of removal. This failure to exhaust constitutes an attempt

to avoid presenting to the Board the very issues it is equipped to address in

considering orders of removal, and should not be rewarded by excusing the

exhaustion requirement.

The District Court erred in holding that two exceptions to statutory

16

exhaustion allowed Petitioners-Appellees to bypass the immigration judges and the

Boardl First, the District Court concluded that Petitioners-Appellees asserted

class-wide violations of a statute and that exhaustion would be futile because the

INS' "position is already set." See ER, Tab G at 9 (citing E1 Rescate Legal

Services, Inc. v. Executive Office for Immigration Review, 959 F.2d 742, 746 (9th

Cir. 1991). The District Court lacked jurisdiction under Section 1252(0(1) to grant

class-wide relief in the first place, and therefore class claims should not be used to

hurdle the exhaustion requirement applicable here. The District Court's finding of

"futility" is similarly unavailing. Specifically, the parties' dispute over whether

acceptance was required under Section 123 l(b)(2)(E)(iv) could have been put to

the test before immigration judges and the Board, as they are separate and

independent entities, distinct from the INS and its successor agency, and the Board

is charged with independently exercising its discretion and judgment. See 8 C.F.R.

§§ 3.0, 3.1(a)(1), 100.1, 100.2 (2002). The Attorney General's delegation of

authority to the Board is one way he implements his authority under 8 U.S.C.

§ 1103 to administer and construe the immigration and nationality laws. See 8

C.F.R. § 3. l(d)(1) (2002) ("[I]n considering and determining cases before it... the

Board shall exercise such discretion and authority conferred upon the Attorney

General by law as is appropriate and necessary for the disposition of the case.").

17

Allowing aliens to bypass this statutory and regulatory regime undermines the

enforcement of the immigration laws, and encourages aliens to conclude that they

may withhold, reserve, or otherwise refrain from adjudicating all of their claims

before the immigration judges and the Board.

Second, the District Court also erroneously concluded that the doctrine of

prudential exhaustion should not apply to this case. See ER, Tab G at 8-9. First,

prudential exhaustion principles do not apply when Congress requires exhaustion.

See Madigan, su__p__. Second, in reaching the erroneous conclusion that the

government's regulations anticipates that designation of a country remains an open

question after the conclusion of removal proceedings, see ER, Tab G, at 9 (citing 8

C.F.R. § 240.10(f) (2002)), the District Court ignored the import of the regulation:

that designations of a country or countries of removal, and disputes arising

therefrom are to be resolved by the immigration judges "during removal

proceedings." See 8 C.F.R. § 240.10(f) (2002) (emphasis added).

Under the District Court's mistaken interpretation of the prudential

exhaustion doctrine and the INA, the designation of a country of removal in the

course of removal proceedings is irrelevant. This cannot be correct. An order of

removal is self-executing, and it therefore requires no judicial enforcement. Se__.ee

Stone, 514 U.S. at 397. Accordingly, when an order of removal becomes

18

administratively final, the government may effect removal to the country designated

in the course of removal proceedings, and therefore is relevant. If it is contested by

an alien, it must be disputed before an immigration judge and the Board either in the

course of the removal proceedings or in a motion to reopen, see 8 C.F.R. §§

3.2(c), 3.23(b) (2002), which Petitioners-Appellees have failed to do here.

Moreover, the alien's ability to designate a country of removal, see 8 U.S.C.

§ 1231(b)(2)(A), reflects his opportunity to raise before an immigration judge the

issue of whether he may be properly removed to one country rather than another.

Finally, Petitioner Mohamed Aweys is not a criminal alien, and therefore he

should have exhausted his administrative and judicial remedies to contest the

designation of Somalia as his country of removal. See 8 U.S.C. § 1252(a)(1)

(providing for petitions for review of orders of removal in the courts of appeals);

Castro-Cortez v. INS, 239 F.3d 1037, 1046-47 (9th Cir. 2001) (holding that aliens

must exhaust available judicial remedies under Section 1252 before seeking habeas

relief in the district courts); Nakaranurack v. United States, 68 F.3d 290, 293-94

(9th Cir. 1995) (holding that under former 8 U.S.C. § 1105a(a)(10)_(1994), "an alien

may petition for habeas review of a deportation order only if the issues raised

conceming the validity of that deportation order had not and could not have been

determined in a prior judicial proceeding.") (emphasis added).

19

B. Habeas Jurisdiction In The District Court Was Foreclosed By 8

U.S.C. § 1252(g).

The District Court erred in not dismissing this case for lack of subject matter

jurisdiction. Contrary to 8 U.S.C. § 1252(g), the District Court allowed this matter

to proceed over the government's objection that it lacked habeas jurisdiction over

this case. Section 1252(g) provides:

Exclusive jurisdiction-

Except as provided in this section and notwithstanding

any other provision of law, no court shall have

jurisdiction to hear any cause or claim by or on behalf of

any alien arising from the decision or action by the

Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under

this chapter.

Under this provision, a district court does not have habeas jurisdiction to

review an alien's challenge to the discretionary decision to execute his order of

removal. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471

(1999), the Supreme Court construed Section 1252(g) to bar review in the district

courts of"three discrete actions that the Attomey General may take: [his] 'decision

or action' to 'commence proceedings, adjudicate cases, or execute removal

orders.'" Id____.at 482 (emphasis in the original). If these three discrete actions are

reviewable at all, they must be asserted in a petition for review because they are not

2o

subject to "separate rounds of judicial intervention outside the streamlined process

that Congress has designed" in Section 1252. See id. at 483-86 (citing 8 U.S.C. §

1252(b)(9)). In this case, Petitioners-Appellees' claims fall within Section 1252(g).

Before the District Court, Respondents-Appellants contended that Section

1252(g)'s statement that "no court shall have jurisdiction to hear" was broader, and

differed sharply from, the phrases "jurisdiction to review" or "judicial review" in

Sections 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9). Put another way, Section

1252(g) encompasses both habeas and non-habeas review within the phrase,

"jurisdiction to hear any cause or claim." The District Court rejected this argument,

explaining that the "same prudential concerns" present in St. Csff were at work here.

See ER, Tab G at 7. The prudential concems that existed in _ were two-fold:

the absence of an adequate, non-habeas forum and the "lack of a clear,

unambiguous, and express statement of congressional intent to preclude judicial

consideration on habeas " See St. C2O:,533 U.S. at 314.

Section 1252(g), however, provides for exclusive judicial review in the courts

of appeals of all causes or claims arising from the execution of orders of removal.

Therefore, it should be properly understood not as repealing habeas jurisdiction,

but directing review of such causes and claims exclusively to the courts of appeals.

See 8 U.S.C. § 1252(g). Accordingly, an adequate, non-habeas forum exists in the

21

instant case. 5 See St. _Q_, 533 U.S. at 314 & n. 38.

Further, "jurisdiction to hear any cause or claim" is far broader than "judicial

review" or "jurisdiction to review," which were found by the Supreme Court to be

historically distinct from habeas review. Id____.at 313-14. Given the availability of an

alternative forum, the same prudential concems in _ do not exist here,

"jurisdiction to hear" is of sufficient clarity to foreclose habeas jurisdiction, and

therefore Congress did not have to expressly repeal or otherwise refer to "habeas"

or 28 U.S.C. § 2241 in Section 1252(g), in order to preclude the District Court's

s Notwithstanding the potential application of the jurisdictional bar in 8

U.S.C. § 1252(a)(2)(C) (barring petitions for review of certain criminal aliens), to

Petitioners-Appellees, this Court would have had jurisdiction over timely petitions

for review from Petitioners-Appellees because they raised constitutional claims in

their habeas petition. See Consolidated Habeas Petition at ¶ 6; First Amended,

Consolidated Habeas Petition at ¶ 13. The availability of review of colorable

constitutional claims, notwithstanding the bar in Section 1252(a)(2)(C), is grounded

in the Supreme Court's decision in Webster v. Doe, 486 U.S. 592, 603 (1988).

Under Webster, absent a clear exclusion in the statutory judicial review scheme,.

e.g_., .Section 1252(a)(2)(C), colorable constitutional claims are subject to review.

This Court, however, has said that it did not need to invoke Webster's principles

because criminal aliens have access to judicial review of their constitutional claims

through the district courts' habeas jurisdiction. See Flores-Miramontes v. INS, 212

F.3d 1133, 1135-36 (9th Cir. 2000). The instant case, unlike Flores-Miramontes,

involves a habeas petition and consideration of whether claims involving a challenge

to the execution of a removal order are, pursuant to Section 1252(g), only

reviewable in the courts of appeals through a petition for review. Review of such a

challenge in the courts of appeals is consistent with Congress's intent because

Congress meant to streamline judicial review in Section 1252, and Congress clearly

intended not to provide review of challenges to the execution of a removal orders in

the district courts. See 8 U.S.C. § 1252(g).

22

habeas jurisdiction over the instant case.

The District Court offered three reasons why Section 1252(g) did not

foreclose its habeas jurisdiction. First, the District Court erroneously concluded

that Petitioners-Appellees do not challenge the Attomey General's discretionary

decision to execute their removal orders. See ER, Tab G at 6. The District Court

found that Petitioners-Appellees "challenge the legality of removal to Somalia[,]"

and that this challenge raises a "purely legal question that does involve review of a

discretionary decision of the Attomey General." See id. at p. 6. The legality of

Petitioners-Appellees' removal to Somalia is necessarily intertwined with the validity

of their orders of removal, and but for the government's decisions that Somalia is a

viable country of removal under Section 1231 (b)(2)(E)(iv) and to execute their

removal orders, Petitioners-Appellees would not have brought this action. Further,

the legality of their orders of removal cannot be contested through an action

seeking an injunction against their removal without necessarily challenging the

execution of their removal orders, and therefore the habeas petition fell within one

of the three discrete matters noted in Section 1252(g). See American-Arab, 525

U.S. at 482.

Second, the District Court explained that Congress did not expressly bar

habeas jurisdiction in Section 1252(g). See ER, Tab G at 6 (citing Jama v. INS,

23

2002 WL 507046 (D. Minn. 2002); Farah v. INS., 2002 WL 3186648 (D. Minn.

2002)). Jama and Farah rely on the Supreme Court's decision in INS v. St. Cyr,

533 U.S. 289 (2001), for the proposition that Congress' alleged failure to expressly

limit habeas jurisdiction in Section 1252(g) allowed those courts to review a habeas

petition that also challenged removal to Somalia. In St. C2O:, the Supreme Court

held that Sections 1252(a)(1), 1252(a)(2)(C), 1252(b)(9), were not, under the facts

of that case, sufficiently clear and unambiguous to effect a repeal of habeas

jurisdiction in the district courts. See 533 U.S. at 298-99. St. _C__, however, did

not overrule or otherwise limit American-Arab. Indeed, _ noted that Section

1252(g) was not relevant to its jurisdictional holding because the three discrete acts

noted in American-Arab were not "at issue [t]here." id.___,at 299 & n. 34.

Accordingly, _ does not resolve the jurisdictional issue in this case.

In the District Court, Petitioners-Appellees asserted that this Court has

already concluded that Section 1252(g) does not bar habeas jurisdiction in the

district courts of constitutional and statutory claims involving pure questions of

law. See Petitioners-Appellees' Traverse and Reply at pp. 27-28 (citing Magana-

Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999)). Magana-Pizano was decided

before the Supreme Court's decision in ._t_.__.__.__..._.Both _ and Magana-Pizano

are, in part, grounded in Felker v. Turpin, 581 U.S. 651 (1996).

24

In Felker, the Supreme Court addressed the issue of whether its original

habeas jurisdiction under 28 U.S.C. 2241 was repealed by Section 106(b)(3)(E) of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214, 1221 (April 24, 1996), which provides that "[t]he grant or

denial of an authorization by a court of appeals to file a second or successive

application [for habeas relief] shall not be appealable and shall not be the subject of

a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E). In

interpreting this provision, the Supreme Court concluded that Section 106(b)(3)(E)

made no mention of its original habeas jurisdiction under 28 U.S.C. § 2241 to

consider a habeas petitions on the same point, and therefore it declined to find that

Section 106(b)(3)(E) had implicitly repealed habeas jurisdiction under Section 2241.

See 518 U.S. at 661.

Unlike the statute at issue in Felker, Section 1252(g) does not repeal certain

grounds of jurisdiction, but rather authorizes only one avenue for consideration of

any cause or claim arising from the three discrete actions of the Attorney General:

in the courts of appeals via a petition for review from an administratively final order

of removal. See 8 U.S.C. § 1252(g). The statute in Felker enumerated specific

jurisdictional avenues that could not be pursued, and the Supreme Court refused to

find that reference to those two non-habeas statutes also encompassed a repeal of

25

habeas. See 518 U.S. at 660-62.

In this case, Section 1252(g)'s displacement of habeas jurisdiction is clearer.

Both the Seventh and Eighth Circuit Courts of Appeals have noted that where

congressional intent to preclude jurisdiction is evidenced by a statute's overall

structure, that intent must be given effect. See Ismailov v. Reno, 263 F.3d 851 (8th

Cir. 2001) (construing 8 U.S.C. § 1158(a)(3) and finding that the presumption in

favor of judicial review does not control "where congressional intent to preclude

judicial review is 'fairly discernible' in the detail of the particular legislative

scheme.") (citing Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)); Sharif

v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2001) (construing 8 U.S.C. § 1252(g) and

stating that _ did "not disturb the holding" in American-Arab, and that

provision did not provide for review in the district courts). Further, the Seventh

Circuit refused to allow habeas petitioners to escape the reach of Section 1252(g)

by asserting that they do not seek review of one of the three discrete acts covered

by that provision. See Sharif_ 280 F.3d at 787 (stating that "§ 1252(g) does not

differentiate among kinds of relief," and where a habeas petition "arises from" the

Attorney General's decision to execute a removal order, Section 1252(g) "interdicts

all judicial review 'arising from'" the decision to execute a removal order, "unless

some other part of Section 1252 allows review."). The matters asserted in this case

26

"aris[e] from" the decision or action by the Attomey General to execute Petitioners-

Appellees' removal orders. See 8 U.S.C. § 1252(g). Therefore, the District

Court's conclusion that the instant petition is not covered by Section 1252(g)

should be reversed.

C. The District Court Erred In Certifying A Nation-wide Class

Because 8 U.S.C. § 1252(f)(1) Bars All Courts, Except The

Supreme Court, From Enjoining The Enforcement AndOperation Of 8 U.S.C. § 1231(b).

The District Court did not have subject matter jurisdiction over Petitioners-

Appellees' request and subsequent motion for class certification. See 8 U.S.C.

§ 1252(0(1). Only the Supreme Court has jurisdiction or authority to enjoin or

restrain on a class-wide basis the operation of the statute at issue in this case. See

id.____.Indeed, the U.S. Supreme Court in American-Arab, noted that class-wide

injunctive relief is prohibited by Section 1252(0(1):

By its plain terms, and even by its title, that provision is nothing more

or less than a limit on injunctive relief. It prohibits federal courts from

granting class-wide injunctive relief against the operation of § § 1221-

1231, but specifies that this ban does not extend to individual cases.

See 525 U.S. at 481-482; see also American Immigration Lawyers' Ass'n v. Reno,

199 F.3d 1352, 1359 (D.C. Cir. 2000) (Section 1252(f)(1) constitutes a ban on

class actions and is a restriction on injunctive relief); Van Dinh v. Reno, 197 F.3d

27

427, 433 (10th Cir. 1999) (same).

Moreover, this Court has said that notwithstanding the government's

"misinterpretation" of a statute that falls within the scope of Section 1252(0(1), the

jurisdictional bar in Section 1252(0(1) would apply to prevent interference with the

operation of the statute. See Catholic Social Services, Inc. v. INS, 182 F.3d 1053,

1062 (9th Cir. 1999) ("regardless of the fact that the [district court's] injunction

provides relief for a harm ostensibly created by the INS's misinterpretation of the

legalization provisionsofpart V, insofar as it would interfere with the operation of

part IV[,] [containing 8 U.S.C. § 1231,] the injunction here is contrary to the plain

language of § 1252 and the district court lacked the jurisdiction to enter it."), affd in

part and rev'd in part, 232 F.3d 1139, 1150 (9th Cir. 2000 (en banc) (concluding

that the district court entered an injunction under 8 U.S.C. § 1255a, which is

located in part V, and "[t]herefore, by its terms, the limitation on injunctive relief [in

Section 1252(0(1)] does not apply to the preliminary injunction granted by the

district court.").

In any event, the District Court's conclusion that Section 1252(0(1) does not

foreclose class-wide claims which allege a violation of a provision falling within

Section 125 l(f)(1)'s scope, see ER, Tab G at 20, would render the statute a nullity.

Specifically, there is no discemible line between an injunction whose aim is the

28

improper enforcement and operation of statues that fall within Section 1252(0(1),

and an injunction that simply challenges a violation of those statutes. Put another

way, if Section 1252(f)(1)'s bar does not include class-wide actions to enjoin or

restrain the improper operation or enforcement of the covered provision, then it

bars nothing, in that the mere allegation of a violation of one of the covered

provisions, takes a class-wide claim outside the scope of the statutory bar. This

cannot be the result Congress intended.

The District Court erred in relying on Grimaldo v. Reno, 187 F.R.D. 643,

648 (D. Colo. 1999), and Tefel v. Reno, 972 F. Supp. 608, 618 (S.D. Fla 1997),

vacated on other grounds, 180 F.3d 1286 (1 lth Cir. 1999), to support its failure to

apply Section 1252(0(1). Both Grimaldo and Tefel hold that actions which seek to

enjoin constitutional violations of the statutes covered in Section 1252(0(1), fall

outside that provision's jurisdictional bar on class-wide injunctions. See 187

F.R.D. at 648; 972 F. Supp. at 618. Section 1252(0(1) assigns the Supreme Court

the initial responsibility of reviewing class-wide claims involving statutes covered in

Section 1252(0(1). This complements Congress' intent to preserve the ability of

individual aliens to assert constitutional claims, but to deny the ability of one district

court or court of appeals to undermine the application of statutes covered in

Section 1252(0(1) on a class-wide basis. See H.R. Rep. No. 104-469, pt. 1, at 161

29

(1996) ("[C]ourts may issue injunctive relief pertaining to the case of an individual

alien, and thus protect against immediate violation of [individual] rights. However,

a single district court or court of appeals does not have authority to enjoin

procedures established by Congress to reform the process of removing illegal

aliens from the United States."). Thus_ neither Grimaldo nor Tefel are persuasive,

nor are they controlling given this Court's statements about Section 1252(f)(1) in

Catholic Social Services, su__u_p__.

Finally, this Court's decision in Waiters v. Reno, 145 F.3d.1032 (9th Cir.

1998), lends no support to the District Court's decision. Section 1252(f)(1)'s

effective date was April 1, 1997. See IIRIRA § 309(a). The action in Walters

commenced in 1994. Accordingly, this Court had no occasion to consider

Section 1252(0(1 ) in Waiters. Further, the claims in Waiters were grounded in

Section 1324c, which falls outside the scope of Section 1252(f)(1), as it covers the

Sections 1221 through 1231.

3O

Ill. The District Court Erroneously Added An Acceptance Requirement

To The Removal Options Available To The Attorney General Under 8

U.S.C. § 1231(b)(2)(E).

A. The Plain Language Of The Statute Authorizes Removal To An

Alien's Country Of Birth Without Acceptance By That Country.

1. Section 1231(b)(2)(E)(iv) Authorizes Removal To An

Alien's Country_ Of Birth.

Section 1231 (b)(2) provides a progressive, three-step process to effect the

removal ofdeportable aliens from the United States. See 8 U.S.C.

§ 1231 (b)(2). Specifically, the statute provides that an alien may designate his

country of removal, and the Attorney General shall remove the alien to the country,

unless, inter alia, the government of the country does not inform the Attorney

General whether it will accept the alien into the country. See 8 U.S.C.

§ 123 l(b)(2)(A) & (C). Second, if the alien is not removed under Section

1231 (b)(2)(A)(i), the Attorney General shall remove the alien to an alternative

country of which the alien is a subject, national, or citizen, unless the government of

that alternative country does not expressly assent to the alien's repatriation. See id.

at § 1231 (b)(2)(D). Finally, where removal to an altemative country is not available,

the Attorney General shall remove the alien to, inter alia, "[t]he country in which

the alien was born." See id. at 1231 (b)(2)(E)(iv).

Therefore, the plain language of the statute provides that the among the

31

removal options available to the Attomey General is removal to the alien's country

of birth, without any "acceptance" requirement. See id. The plain language of the

statute therefore takes account of the problem of Somalia, where there is no central

government from which acceptance obtained by the United States.

Further, Somalia is a "country," and therefore removal may be accomplished

consistent with Section 123 l(b)(2)(E)(iv). See Smith v. United States, 507 U.S.

197, 201 (1993) (stating that the "commonsense meaning" of the term "country" is

"' [a] region or tract of land[,]'" and therefore Antarctica qualified as a "country,"

"even thought it has no recognized government") (citing Webster's New

Intemational Dictionary 609 (2d ed. 1945)). Removal to a country lacking a central

government is therefore authorized under the statute, and Congress's grant of

authority in this regard must mean that it did not require, as a condition precedent, a

govemment's acceptance of an alien's repatriation to a country in Section

1231 (b)(2)(E)(i) - (vi).

Because the District Court added an "acceptance" requirement, where none

existed, it paid insufficient deference to Congress' plenary power over the

admission and removal of aliens and the Executive Branch's role in removing aliens

from the United States, particularly its interaction with other govemments or

countries. The United States' return of a foreign country's citizens, nationals, and

32

subjects is a quintessential act of sovereignty, and therefore raises a question that is

reserved exclusively to the political branches because "any policy towards aliens is

vitally and inextricably interwoven with contemporaneous policies in regard to the

conduct of foreign relations." Harisiades v. Shaughnessy, 342 U.S. 580, 589

(1952); Galvan v. Press, 347 U.S. 522, 530 (1954).

In addition, applying Section 123 l(b)(2)(E)(iv) without any "acceptance"

requirement does not eliminate the "willing to accept" language in Section

1231 (b)(2)(D), the second step in the removal process. On the contrary, the

provisions serve different purposes. Specifically, through Sections 1231 (b)(2)(A)

and (D), Congress directs the Attomey General to first attempt to obtain

"acceptance" from the government of the country to which the alien was to be

returned. However, in the absence of a central government, Congress did not

intend to subvert or otherwise impair the United States' sovereign prerogative to

remove an alien who has no tight to remain here by requiting that the alien's country

of birth accept him. See 8 U.S.C. § 1231 (b)(2)(E)(iv). Sections 1231 (b)(2)(A) &

(D) contemplate that there will be another sovereign, from whom the United States

would be expected obtain acceptance of an alien's return.

On the other hand, where there is no central government which would be

offended by an alien's return, as is the case with Somalia, paying heed to this

33

principal of reciprocity and comity between sovereigns in exchanging nationals or

citizens is unwarranted, as there will be no central government that will take

umbrage at an alien's return. Further, where the United States is unable to remove

an alien to one of the countries found in subprovisions (E)(i) - (vi), it is logical that,

pursuant to Section 1231(b)(2)(E)(vii), the United States would be required to

obtain the consent of a government willing to accept the alien, as that prospective

government would have no ties to the alien, and therefore would expect its

sovereignty to be respected by the United States.

If Congress had a limited view of these removal options and wanted the

government to obtain "acceptance" from a government when he used his removal

authority under each provision in Section 1231(b)(2), it could easily have said so.

This is compelled by the statutory construction rules laid down by the Supreme

Court in Russello v. United States 464 U.S. 16, 23 (1983). 6 Because Congress did

6 Russello endorsed an important rule of statutory construction set forth in

United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972) (holding that "[i]n

construing statutes, words are to be given their natural, plain, ordinary and

commonly understood meaning unless it is clear that some other meaning was

intended.., and where Congress has carefully employed a term in one place and

excluded it in another, it should not be implied where excluded." Id. (citation

omitted) (emphasis added). Stated another way, "where Congress includes

particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion." Id. This principle has been adopted by this

(continued...)

34

not require "acceptance" in subprovisions (E)(i) - (vi), but included "acceptance"

in Sections 1231 (b)(2)(C), 1231 (b)(2)(D), and 1231 (b)(2)(E)(vii), reading

"acceptance" into subprovisions (E)(i) - (vi), is contrary to the rule of statutory

construction laid down in Russello.

Adding an "acceptance" requirement to Section 1231 (b)(2)(E)(iv), where

none previously existed, is also contrary to Congress' intent that aliens gain no

substantive or procedural fight or benefit from any provision in Section 1231. _See

8 U.S.C. § 1231 (h). The District Court added an "acceptance" requirement to the

statute to limit the Attorney General's removal options, and expand aliens' ability to

thwart their removal from the United States. This is contrary to Section 123 l(h).

What should be gleaned from the statute is that Congress intended to

maximize, rather than reduce, the Attorney General's removal options. Under the

District Court's interpretation of the statute, the Attorney General has only one

6(...continued)

Circuit. See Arizona Elec. Power v. United States, 816 F.2d 1366, 1375 (9th Cir.

1987) (citing Russello.); see also United States v. Anderson, 895 F.2d 641,645 (9th

Cir. 1990) ("The reasoning in Russello is persuasive in this case, where the Court is

analyzing subparagraphs within the same section."); Lutheran Social Service of

Minnesota v. United States, 758 F.2d 1283, 1289 (8th Cir. 1985) (The omission of

a term "on the part of Congress can only be viewed as an intentional and

purposeful decision .... This conclusion is particularly compelling given that

Congress' inclusion.., and exclusion [of a term].., occur[s] within the very same

subsection..., rather than in two separate and unrelated subsections.") (citing

Russello and Wong Kim Bo).

35

removal option: to obtain the acceptance of the government of the country to

which the alien is to be removed, rather than the multitude of removal options

available under the plain language of Section 1231 (b)(2).

Moreover, limiting the government's removal options undermines its ability to

protect the Nation's borders. See Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206, 216 (1953) ("But, the times being what they are, Congress may well have

felt that other countries ought not shift the onus to us; that an alien in respondent's

position is no more ours than theirs."); see also S. Rep. No. 48, 104 th Cong., 1st

Sess., 1995 WL 170285 (noting that one of the driving concerns of Congress in

enacting immigration reforms was that our immigration laws should be more

effective in actually removing deportable individuals).

The District Court concluded that "the only logical interpretation of the plain

meaning [of the statute] that gives effect to all sections of the statute is one that

requires government acceptance from the countries identified in Section

1231 (b)(2)(E)(i) - (vi)." See ER, Tab G at 14. This strained interpretation of the

statute was undertaken by the District Court to give effect to the whole statute and

to preclude the United States from removing an alien under Section

1231 (b)(2)(E)(i)- (vi) to a country where the United States has not obtained the

government' s acceptance of the alien's return under Section 1231 (b)(2)(D). See id.

36

Apart from the dubious prospect that a court could review such a dispute between

the United States and another government of a kind conjured up by the District

Court, this construction of the statute fails to account for the circumstances in this

case, where there is no central government in Somalia from which the United States

may obtain acceptance under Section 1231 (b)(2)(D), but removal of the alien may

be effected to the country of Somalia under Section 1231 (b)(2)(E)(iv), without

acceptance.

Further, the District Court's erroneous interpretation of the statute failed to

pay any deference to the government's regulations, which provide that "[i]n the

event the [government] is unable to remove the alien to the specified or alternative

country or countries, the [government] may remove the alien to any other country

as permitted by" Section 1231(b). 8 C.F.R. § 240.10(g) (2002). See 8 U.S.C.

§ 1103(a) (1) & (3) (delegating authority to the Attorney General to promulgate

regulations to aid in the enforcement and administration of the INA); see also

Aguirre-Aguirre, 526 U.S. at 424; National Medical Enter., Inc. v. Sullivan, 957

F.2d 664, 667-68 (gth Cir. 1992) (Once '"Congress has explicitly left a gap for the

agency to fill, we will give the resulting regulation 'controlling weight' unless it is

'manifestly contrary to the statute.'") (quoting Chevron, 467 U.S. at 843-44).

The District Court's error is compounded by its view that the "country" in

37

step three must be different than the countries available in steps one and two. See

ER, Tab G at 14 ("Additional countries [in Section 1231(b)(2)(E)] means countries

Other than the one designated by the removable person (step 1) or a country of

which he is a subject, national or citizen (step 2)."). This erroneous construction is

based on upon the District Court's view that a court's duty is to harmonize the

entire statute to avoid absurd results. In this case, it is only the District Court's

erroneous interpretation of the statute that creates an absurd result. Specifically, the

absurd result the District Court was concemed about is not at issue here, in that

there was no opportunity for the United States to apply step two ( Section

123 l(b)(2)(D)), as there is no central government in Somalia.

Finally, the District Court's view that its construction of the statute is

necessary to "thwart" the government from skipping to step three misperceives its

role. See ER, Tab G at 15. As noted above, there is no fight to private

enforcement of Section 1231(b)(2). See 8 U.S.C. § 1231(h). Further, the

legislative priority for effecting removal of an alien from the United States is

expressed in Section 1231 (b)(2), and the District Court erroneously presumed far

too much in concluding that the United States government would "skip" to step

three, and thereby ignore Congress' progressive removal scheme. See Akiak

Native Community v. U.S. Postal Service, 213 F.3d 1140, 1146 (9th Cir. 2000) (An

38

"agency's decision-making process is accorded a 'presumption of regularity.'")

(citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415

(1971)).

2. The Second Circuit's Decision In Tom Man Does Not

Govern The Unique Circumstances Presented In ThisCase.

The District Court erroneously concluded that adding an "acceptance"

requirement to each subprovision of 123 l(b)(2)(E)(i) - (vi) was supported by the

Second Circuit's decision in United States ex rel. Tom Man v. Murff, 264 F.2d 926

(2d Cir. 1959). It cannot be disputed that Tom Man involved an interpretation of a

different statute, 8 U.S.C. § 1253(a), than is at issue in this case. In 1996, when

Congress enacted Section 1231 (b)(2), it included an "acceptance" requirement in

some but not all instances. Section 1253(a), by contrast, was amenable to an

imputation of the "acceptance" language in each subprovision of Section 1253(a),

particularly in the pre-Chevron and -Aguirre-Aguirre era] This is so for several

reasons.

First, the former provision was one subsection - Section 1253(a) - which

contained"acceptance" throughout the subsection. This is in contrast to Section

7 8 U.S.C. § 1253(a) (1994) is set forth in its entirety in the Appendix,Exhibit B.

39

1231 (b)(2), which contains several subsections and subprovisions, and includes

"acceptance" in 8 U.S.C. § § 1231 (b)(2)(C), 123 l(b)(2)(D) and 1231 (b)(2)(E)(vii),

but omits it from Section 123 l(b)(2)(E)(i) - (iv). Second, the provisions (1) through

(7) in former section 1253(a) are followed by a semicolon, meaning they are part of

one sentence, and thus makes the importation of "acceptance " in (7), which is the

last phrase, to provisions (1) - (6) possible. In contrast, section 123 l(b)(2)(E),

separates each of its subprovisions with a period, making clear that they stand

alone and are modified only by the introductory text (and not by each other).

Thus, a construction which imputes "acceptance" into Section 123 l(b)(2)(E)(iv),

not only violates Russello, it is illogical. At bottom, Tom Man does not control

removal under Section 1231 (b)(2) even in the Second Circuit, it certainly never was

the law of this Circuit, and it cannot persuasively be employed here.

The District Court rejected the Government's reliance on Matter of Niese!, 10

I. & N. Dec. 57 (BIA 1962), 1962 WL 12904 (BIA 1962) (holding that no

preliminary inquiry was required under Section 1253(a), and the District Court

found more persuasive another decision of the Board, see Matter of Linnas, 19 I. &

N. Dec. 302 (BIA 1985), 1985 WL 56051 (BIA) (citing Tom Man and stating, in

dicta, government must be willing to accept an alien prior to removal from the

United States). Both Niesel and Linnas involve Section 1253(a), which, as noted

40

above, is wholly inapposite to a discussion of Section 1231(b)(2)(E). s Moreover, if

Congress meant to adopt any Board decision when in enacted section 1231 (b)(2),

see Keene Corp. v. United States, 508 U.S. 200, 212 (1993); Lorillard v. Pons,

434 U.S. 575, 580 (1978), it meant to adopt a construction of the government's

removal authority that maximized, rather than reduced, its removal options:

B. The Legislative History And International Law Cited By The

District Court Undermines Congress' Intent To Provide The

Attorney General With Broad Removal Authority.

The District Court turned to two extrinisic aids in its search for Congress'

intent in section 1231 (b). Specifically, it looked to a 1950 report of the Senate

Judiciary Committee report and to international law to, in the District Court's view,

harmonize the statute with the United States' international obligations. The District

Court improperly used these tools.

g Moreover, even if Linnas could be used to construe the current statute,

section 123 l(b)(2)(E)(iv), Linnas has no import outside the Second Circuit. TheBoard cited Tom Man because deportation proceedings against Linnas were

commenced within the Second Circuit. See 1985 WL 56051 ("In context of step #

2 of section 243(a), the Second Circuit, the circuit in which the respondent's case

arises .... ") (emphasis added); see also Matter of K-V-D-, 22 I. & N. Dec. 1163

& n. 5 (BIA 1999), 1999 WL 1186808 (BIA) (explaining Board's policy of

intracircuit acquiescence in courts of appeals' decisions). Accordingly, Matter of

Linnas has no import outside of the Second Circuit. Also, Linnas' views on

Section 1253(a) is dicta, as the Board turned to Tom Man as part of its effort to

comment upon the differing qualities of a "country" and a "government" of a

country. See 1985 WL 56051.

41

1. A 1950 Committee Report Cannot Control The Statutory

Interpretation Of Congress' 1996 Reform Of The INA.

A committee report from one house of Congress that was written two years

before the enactment of Section 1253(a) cannot control the plain language of 8

U.S.C. § 1231 (b)(2)(E)(iv). Legislative history may be properly referred to when

the plain language of the statute is ambiguous or equivocal, and it should only be

utilized to "give effect, if possible, to every clause and word of a statute," as the

"cardinal principle of statutory construction is to save and not to destroy." See

United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal citations

omitted). In this case, the District Court's reliance on a pre-enactment committee

report rends the text of section 1231 (b)(2)(E), by ignoring the plain language of

subprovision (E)(iv), by adding an "acceptance" requirement.

In addition, the committee report does not address how Section 123 l(b)(2)

should be interpreted, as the report precedes that provision by over 40 years.

Second, the committee report did not address the circumstances of this case, in

that the report discusses the problem of obtaining a passport or travel document

from governments, like Russia, in order to return a deportable alien. See ER, Tab

G at 16-17. In this case, there is no central government from which to obtain a

passport or travel document. Therefore, the committee report does not resolve any

42

alleged ambiguity in Section 123 l(b)(2). See Arizona Elec. Power., 816 F.2d at

1375 ("Moreover, an analysis of legislative history is proper only to solve, not to

create an ambiguity.").

Second, relying on preenactment committee reports also ignores the

proposition that "[e]very time Congress enacts legislation, it is acting in context."

Environmental Defense Funds, Inc., v. City of Chicago, 948 F.2d 345, 351 (7th

Cir. 1991). Unmistakably, a principal target of Congress' passage of the

immigration reforms in 1996, of which Section 1231 (b)(2) was a part, was to

expedite the removal of criminal, inadmissible, and other aliens from the United

States. See e._, S. Rep. No. 104-48, 1995 WL 170285 (April 7, 1995) (noting

concern with widespread recidivism and flight to avoid deportation). The District

Court's reference to a 1950 committee report fails to take into account Congress'

current intent, as best expressed in the plain language of Section 1231 (b)(2)(E)(iv).

In addition, the preenactment committee report cannot trump 8 C.F.R.

§ 240.10(g) (2002), which authorizes removal of aliens to any country permitted in

Section 123 l(b)(2), and the provision in question here authorizes removal to an

alien's country of birth, without imposing an acceptance requirement. Therefore,

the District Court erred in preferring the committee report's language over the

regulation. See San Bernardino Mountains Community Hospital v. Secretary,

43

Health and Human Services, 63 F.3d 882, 887 (9th Cir. 1995) (Where the

"Secretary's interpretations fall squarely within her statutorily granted discretion,

legislative history such as the Senate committee report cannot defeat the

regulation."))

2. The District Court Erroneously Applied International Law

To Override, Rather Than Complement, CongressionalIntent.

The District Court erred in using international law to add an "acceptance"

requirement to Section 123 l(b)(2)(E)(iv). See ER, Tab G at 18-19. This finding

mistakenly presumes that international law has not been trumped by the specific

statutory authority promulgated by Congress.

9 Similarly, this Court should reject the District Court's reliance on INS

Operating Instruction 243.1 (c)(1) and 8 C.F.R. § 241.4(k)(1)(i) (2002), to support

the proposition that prior acceptance of an alien's removal is required under the

statute because the instruction was repealed when Congress enacted Section 1231

as Operating Instruction 243.1 (c)(1) corresponds with former Section 243 of the

INA, 8 U.S.C. § 1253. Further, this operating instruction carries no weight in

interpreting the statute because it constitutes mere internal guidance, provides no

substantive rights, and therefore lacks authority to bind the agency. See Moore v.

_Ap___, 216 F.3d 864, 868-69 & n. 2 (9th Cir. 2000); see also Schweiker v. Hansen,

450 U.S. 785, 789 (1981); Morton v. Ruiz, 415 U.S. 199, 232 (1974).

In addition, 8 C.F.R. § 241.4(k)(1)(i) (2002), lends no support to the District

Court's interpretation of the statute. Specifically, Section 241.4(k)(1)(i) concerns

the timing of an alien's custody review during the removal period, where the alien

camaot be removed because no country will currently accept the alien. In this case,

a country, Somalia, will accept Petitioners-Appellees.

44

In this case, Petitioners-Appellees had the opportunity to apply for relief or

protection from removal under our laws concerning asylum, withholding of

removal, protection under the Convention Against Torture, or for Temporary

Protected Status. See 8 U.S.C. §§ 1158(b); 1231(b)(3); 1254a; 8 C.F.R.

§§ 208.16-18 (2002). Petitioners-Appellees either did not apply for or failed to

qualify for such relief or protection. International law may not be used to provide

Petitioners-Appellees any more than that which Congress provided to them. Se.____ge

Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc); see also

Garcia-Mir v Meese, 788 F.2d 1446, 1455 (1 lth Cir. 1986) (international law is

displaced by a properly enacted and constitutional statute, even if the statute

violates international law); Gisbert v. United States, Attorney General, 988 F.2d

1122 (5th Cir. 1993) ("international law is not controlling because federal executive,

legislative, and judicial actions supersede the application of these principles of

international law.").

Even if Section 1231 (b)(2)(E)(iv) is ambiguous, which it is not, the

immigration laws provide eligible aliens with all the congressionally-authorized

protection they are entitled to against the alleged harm perceived by the District

Court. Therefore, the District Court's reliance on international law to add an

"acceptance" requirement in Section 1231 (b)(2)(E)(iv), improperly erected another

45

regime for relief from removal alongside the current statutory and regulatory

framework.

IV. The District Court Improperly Certified A Nation-wide Class.

The District Court's certification of a nation-wide class in this case is built

upon several flawed conclusions: a finding that the Attorney General and the

Commissioner of the INS are proper respondents, that habeas classes are

appropriate in exceptional cases, that next-friend standing is not required in a

habeas class action where the named petitioners have standing, and that Federal

Rule of Civil Procedure 23 authorizes the certification of a habeas class. See ER,

Tab G at 20-25. In addition to ignoring the jurisdictional bar in Section 1252(0(1),

the District Court's certification of a nation-wide habeas class is unprecedented, it

ignores the Supreme Court's admonition that nation-wide classes are disfavored,

and it represents a fundamental misunderstanding about an essential feature of

habeas jurisprudence: habeas is an individual's right to challenge a restrain on his

liberty. See Ex parte Yerger, 8 Wall. 85, 95, (1869). Moreover, while courts have

discussed habeas classes, the District Court has not cited any case that allowed a

district court's habeas jurisdiction to extend to petitioners who are outside of a

court's geographical boundaries.

46

A. The Attorney General And The Commissioner Of The INS Are

Not Proper Custodians-Respondents.

The District Court was provided with the locations of each removable

Somali national that was detained by the INS, and only the named Petitioners-

Appellees were within the court's geographical boundaries. See ER, Tab F at 4,

¶ 7. Further, the District Court was presented with unrebutted testimony that

neither the Attomey General nor the Commissioner of the INS took part in INS

district directors' or INS Directorate for Detention and Removal's efforts to

apprehend, detain, and remove Somali nationals from the United States. See ER,

Tab E. Nevertheless, the District Court concluded that its habeas jurisdiction was

"not so inflexible" as to preclude treating the Attorney General and the

Commissioner of the INS as the custodians in this case. The District Court

explained that this is "an exceptional case" involving "a class action challenging the

Attorney General's statutory authority to remove a large number of unidentified

Somalis around the country;" putative class members are transferred from district

to district, "even when there are pending habeas petitions;" "the exact location and

identity of putative class members is unknown;" and there is evidence that the

removal of Somalis is not directed at the "district level, but higher in the

governmental bureaucracy." See ER, Tab G at 23 (citing Demjanjuk v. Meese, 784

47

F.2d 1114, 1116 (D.C. Cir. 1986) (Bork, J., in chambers); Padilla v. Rumsfeld, __

F. Supp. 2d __, 2002 WL 3178308, "14 (S.D.N.Y. 2002); Mojica v. Reno, 970 F.

Supp. 130, 166-67 (E.D.N.Y. 1997); Nguyen Da Yen v. Kissinger, 70 F.R.D. 656,

661 (N.D. Cal. 1976). l° This conclusion is incorrect for several reasons.

First, contrary to the District Court's conclusion, the law concerning who is

the proper custodian in an immigration habeas petition is not unsettled. This Court

has held that "[t]he proper respondent in a federal habeas corpus petition is the

petitioner's 'immediate custodian.'" Brittingham v. United States, 982 F.2d 378,

378 (9th Cir. 1992) (affirming dismissal habeas petition for lack of personal

jurisdiction) (citing Guerra v. Meese., 786 F.2d 414, 416 (D.C. Cir. 1986), and

Demjanjuk, 784 F.2d at 1115). This is only logical because the writ acts against the

person who has "day-to-day control over the prisoner." Brittingham, 982 F.2d at

378; see also 28 U.S.C. § 2243 ("The writ, or order to show cause, shall be

directed to the person having custody of the person detained."); Braden v. 30th

Judicial Circuit Court, 410 U.S. 484, 494-495 (1973); Schlanger v. Seamans, 401

U.S. 487, 491 (1971); Ex Parte Endo, 323 U.S. 283,306 (1944). Accordingly, the

_0 The District Court's reliance on _ is unpersuasive here because its

holding regarding personal jurisdiction remains an open question in the Second

Circuit, in that the personal jurisdiction issues there were not definitively addressed

by the Second Circuit due to settlement of the claims in that case. See Yesil v.

Reno, 175 F.3d 287 (2d Cir. 1999) (per curiam).

48

Attorney General and the Commissioner of the INS are not proper respondents in a

habeas petition, as they do not have day-to-day control over the alien.

Second, that putative class members with habeas petitions have been

transferred from the judicial district where petitions are pending is no cause for the

District Court to find the Attorney General and the Commissioner of the INS are

the proper custodians in this case. Rather, the courts before whom the petitions

are pending have adequate authority to retain and enforce their jurisdiction over the

petitioner and the proper respondent. See 28 U.S.C. § 1651.

Third, in Demjanjuk, Judge Bork concluded that the Attomey General was

the proper respondent because it was important that Demjanjuk, in that the "limited

and special circumstances" present in that case, "not be denied the right to petition

for a writ of habeas corpus. ''1_ 784 F.2d at 1116. In the contrast, Petitioners-

Appellees have shown that they could name the proper custodian-respondent, the

former INS District Director, and they and other Somali nationals who want to

avoid removal to Somalia have demonstrated that have not been denied a fight to

petition for a writ of habeas corpus. See, e.g., Jama. su_u_p_m;Ghelle v. INS, E. D.

" Demjanjuk was held in a confidential location by the United States

Marshals Service, and Judge Bork concluded that it would be impractical for

Demjanjuk's attorneys to file a habeas petition in every district court in the country,

and therefore it was appropriate, in that "limited and special" context, to designate

the Attorney General as the custodian-respondent. Id. at 1115-16

49

La. (No. 02-3487); Omar, et al. v. iNS; D. Minn. (No. 02-1387).

Similarly, this Court's decision in Nguyen Da Yen lends no support to the

District Court's finding that the Attorney General and the Commissioner of the INS

may be designated as respondents in this case. The District Court referred to

Nguyen Da Yen on remand to Judge Williams of the Northern District of California.

See ER, Tab G at 23 (citing Nguyen Da Yen, 70 F.R.D. at 661). _2 However, that

passage makes no reference to designating heads of agencies as the proper

custodians-respondents in habeas petitions. Moreover, Judge Williams refused to

certify a habeas class. See 70 F.R.D. at 661-670. Finally, there was no dispute in

the Nguyen Da Yen cases over the naming of Secretary of State Kissinger as a

respondent, among others, in the case. In contrast, the Attorney General and the

Commissioner of the INS strongly dispute their designation as respondents here.

The Third Circuit in Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994), properly

concluded that it. would be erroneous to hold that a habeas respondent can be

someone other than the person with day-to-day control over the prisoner:

"Otherwise, the Attorney General of the United States could be considered the

_2Nguyen Da Yen involved a "unique lawsuit" that arose from the United

States' effort to evacuate children from Vietnam in the days prior to the fall of

Saigon in 1975. See 528 F.2d at 1197. A class action was brought against the

government, alleging that it had erroneously separated Vietnamese children and their

parents, and that the children had been involuntarily detained. Id.

50

custodian of every alien and prisoner in custody because [he] ultimately controls

the [INS] district directors and prisons." Id. at 507; see also Vasquez v. Reno, 233

F.3d 688, 689, 693,696 (lst Cir. 2000). The District Court should therefore have

followed well-settled Supreme Court authority and Brittingham, Vasquez and Yi in

this case.

C. Neither The Supreme Court Nor This Court Have Authorized

Habeas Class Actions That Extend Beyond A District Court's

Geographical Boundaries.

A nation-wide habeas class is contrary to the habeas statute, and the District

Court's justification of certifying a nation-wide habeas class is unpersuasive. The

habeas statute provides that "[w]rits of habeas corpus may be granted by... the

district courts.., within their respective jurisdictions." 28 U.S.C. § 2241(a). The

boundaries of the District Court are set by statute, and they do not provide for

nationwide jurisdiction. See 28 U.S.C. § 128(b). Accordingly, the District Court

exceeded its habeas jurisdiction, and certified a nation-wide habeas class.

The District Court found that the uniform application of Section 1231 (b) was

called into question in this case; that it was judicially economical to resolve this

case in one jurisdiction, rather than strain multiple court dockets; and a nation-wide

class addresses interstate transportation of class members and their difficulty in

obtaining counsel. See ER, Tab G at 24. None of these principles are grounded in

51

the habeas statute. Rather, they constitute raw judicial lawmaking, going far beyond

the District Court's habeas authority to act upon individual habeas petitions against

individual respondents within its territorial jurisdiction. The District Court's

rationale is inconsistent with the habeas statute, and it is improper even on its own

terms. As the District Court acknowledges and yet fails to heed, see ER, Tab G at

24, the Supreme Court has said that nation-wide class actions are disfavored, as

they foreclose an opportunity for different courts to address legal questions. See

United States v. Mendoza, 464 U.S. 154, 159 (1984) ("Allowing only one final

adjudication would deprive this Court of the benefit it receives from permitting

several courts of appeals to explore a difficult question before this Court grants

certiorari."); Califano v. Yamasaki, 442 U.S. 682, 702 (1979) ("[A] federal court

when asked to certify a nationwide class should take care to ensure that nationwide

relief is indeed appropriate in the case before it, and that certification of such a

class would not improperly interfere with litigation of similar issues in other judicial

districts.").

Further, neither the Supreme Court nor this Court have sanctioned the use of

a nation-wide habeas class on the grounds offered by the District Court. In

Nguyen Da Yen, this Court stated that a district court's habeas jurisdiction is limited

to its territorial jurisdiction. Se..._e528 F.2d at 1204. Similarly, in Mead v. Parker,

52

464 F.2d 1108 (9th Cir. 1972), this Court did not authorize a habeas class, and

certainly did not authorize a habeas class that exceeded a district court's territorial

jurisdiction. In Mead, a case involving prison inmates at McNeil Island,

Wash!ngton, there was no extensive record or briefing from the respondent, and the

district court dismissed the case, concluding that habeas corpus was not an

appropriate vehicle for a class action. Id___.at 1112. This Court reversed the district

court, stating that there are cases where class relief can benefit a large and

amorphous group and that an "objection to a class action that rests upon the unique

character of habeas corpus" is not warranted where the action is pursued under 28

U.S.C. § 1361, the Mandamus Act. Id____.Accordingly, Mead lends no support in

this case because the habeas class there was confined to prisoners within the

judicial district, and Petitioners-Appellees in this case did not rely on the Mandamus

Act.

D. A Habeas Class In This Case Cannot Be Sustained Through

Next-Friend Standing.

A habeas petition must be signed by the petitioner or on his behalf "by

someone acting in his behalf." 28 U.S.C. § 2242. In this case, the petition is only

signed by the four named Petitioners-Appellees. Their signatures alone cannot

sustain a nation-wide habeas class. Coalition of Clew, Lawyers, and Professors v.

53

Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002)

Congress codified the next-friend standing doctrine in 1948. See 28 U.S.C.

§ 2242. The next friend must demonstrate that the real party in interest cannot

appear on his on behalf, and therefore the absent party requires another to litigate

the matter. See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). This burden is

placed upon the next friend in order to avoid "intruders" and "univited meddlers[,]"

so as to avoid providing footing to those with only a generalized interest in the

litigation, and therefore unable to meet Article III's standing requirements. See id.

at 164. A fundamental requirement of"next-friend" standing is that access to the

courts by the real-party-in-interest is impeded. Id_____.at 165.

This Court recently construed the "next-friend" requirements, and concluded

that for someone to act on the behalf of a detainee, a next friend must establish "(1)

the petitioner is unable to litigate his own cause due to mental incapacity, lack of

access to court, or other similar disability; and (2) the next friend has some

significant relationship with, and is truly dedicated to the best interests of, the

petitioner." Coalition of Clery, 310 F.3d at 1159-60. Petitioners-Appellees fail

both tests.

Petitioners' own proof showed that putative class members ,who desire

habeas relief, have unimpeded access to the courts. Petitioners-Appellees asserted

54

"habeas proceedings involving fifteen Class members have been filed in Minnesota

and Louisiana." See Petitioners' Emergency Mot. p. at 4 (Attorney Michele

Garnette McKenzie recounted that she met with five Somali detainees, but only two

requested assistancewith challenging their removal). Petitioners-Appellees failed to

show that the putative class members lack access to the courts. Further, there are a

number of Somali habeas petitions raising claims similar to Petitioners-Appellees

pending in the district courts in California, Louisiana, and Minnesota. In addition,

the case which the District Court relies principally upon for its interpretation of

Sections 123 l(b)(2) and 1252(g), Jama v. INS, has been argued and is now

pending before the Eighth Circuit. See No. 02-2324 (8th Cir.).

Further, the District Court improperly concluded that Petitioners-Appellees'

standing was sufficient to establish next-friend standing for class members who had

not signed and verified the habeas petition. See ER, Tab G at 21. This is a

fundamental misunderstanding of the next-friend requirement, in that the habeas

statute requires each individual habeas petitioner to sign and verify the petition or

have someone to sign it on their behalf. See 28 U.S.C. § 2242. In support of its

erroneous conclusion, the District Court referred to Nguyen Da Yen and the

Second Circuit's decision in United States ex rel. Sero v. Preiser, 506 F.2d 1115,

1126 (2d Cir. 1974), and stated that "courts that recognize habeas classes do not

55

investigate next-Mend standing." See ER, Tab G at 21.

An examination of next-Mend standing before certifying a habeas class is

required under the law of this Circuit. See Coalition of Clergy, Su___U_p_N.Further,

Sero examined the next-Mend requirement, stating that it was satisfied in that case

because the age and competence of members of the class (16-21 year old

misdemeanants), made it unlikely that they would avail themselves of the relief

sought. See 506 F.2d at 1125 n. 8. In addition, there was no occasion for this

Court in Nguyen Da Yen to investigate the next-friend requirement. See 528 F.2d at

1203 n. 17 ("Given the possibility of amendment, we need not at this point resolve

whether the district court in habeas may deal with the application as a class action

in litigating the merits, once identities are ascertained, individual applications must

be filed for each child whose status is questionable. We leave it to the district

court.., to chart the best course for hearing the interested parties and resolving the

merits of the claims.") (emphasis added). As noted above, this Court in N.__ggZ_

Da Yen expressly limited a habeas class to the territorial jurisdiction of the district

court, and the district court, in any event, declined to certify a habeas class. See

528 F.2d at 1204; 70 F.R.D. at 661-70.

Essential to Nguyen Da Yen, Serio, and any habeas claim is the notion that it

is an individual remedy, designed to challenge the custodian's restraint on that

56

individual's liberty. Specifically, The writ of habeas corpus historically has been

used to review the legality of detention and its focus has been on affording relief to

an individual in custody. See Felker, su_up_N.The writ of habeas corpus gives a

court power to direct an official to "produce the body" of a person in custody

within the jurisdiction of the court issuing the writ. See Barry_ v. Brower 864 F.2d

294, 301 (3d Cir. 1998); see also Ex parte Yerger, 8 Wall. 85, 95, (1869) (stating

that the writ of habeas corpus "has been for centuries esteemed the best and only

sufficient defence [sic] of personal freedom."). Habeas classes, and certainly

those that extend beyond a district court's territorial confines, should therefore be

eschewed.

Finally, the District Court's habeas class decision relied on United States

Parole Commission v. Geraghty, 445 U.S. 388, 392 (1979). See ER, Tab G at 21.

Geraghty, however, does not go that far, in that it merely holds that a former federal

prisoner can continue to pursue class certification even though he was released

from prison. Id__._.at 402-04. Further, the Third Circuit had Concluded that the case

was not "necessarily a habeas corpus action[,] and that it should proceed as a

action for declaratory judgment." See Geraghty v. United States Parole

Commission, 552 F. Supp. 276, 278 (M.D. Penn. 1982) (confining the declaratory

relief class to federal prisoners in the Middle District of Pennsylvania).

57

E. Federal Rule Of Civil Procedure 23 Does Not Apply To Habeas

Actions.

Rule 23's class action provisions do not apply to this case. See Fed. R. Civ.

P. 81(a)(2) (2003). Rule 81(a)(2) provides that the Federal Rules of Civil

Procedure are displaced when the habeas statute provides the rule of practice and

procedure. See Fed. R. Civ. P. 81 (a)(2) ("These rules are applicable to

proceedings for.., habeas corpus..., to the extent that the practice in such

proceedings is not set forth in the statutes of the United States .... "). The habeas

statute states that a petition must be signed and verified by the petitioner or

someone acting on his behalf. See 28 U.S.C. § 2242. Therefore, the District Court

erred in directly importing and applying Rule 23 in this case. As noted above,

Petitioners-Appellees cannot satisfy the requirements of Section 2242. Further, this

Court's decision in Mead, as noted above, does not authorize a habeas class.

Finally, Rule 23's requirements should not be imported as a procedural

analogue for the same reasons that nation-wide habeas classes have not been

expressly and clearly authorized by this Court or the Supreme Court, and the next-

friend requirement has not been eliminated even for habeas classes within a district

court's territorial limits.

58

V. Zadvydas Relief Should Be Denied Where The Sole Impediment To

Removal From The United States Is The Alien's Conduct In Securing

An Injunction Barring Removal.

Petitioners-Appellees' detention by the Attorney General was lawful pursuant

to 8 U.S.C. § 123 l(a). They are subject to administratively final orders of removal,

and were detained pending their removal to Somalia. If this Court reverses the

District Court's decisions concerning jurisdiction, Section 1231 (b)(2)(E)(iv), or

both, Petitioners-Appellees' will be removed to Somalia, and Zadvydas relief would

not be required. On the other hand, if the District Court's findings are sustained,

the District Court erred in not allowing the Government to conduct an

administrative review of Petitioner-Appellees' custody status, and render a decision.

Accordingly, the District Court's release decision should be reversed.

Congress has created three types of detention after the entry of a final order

of removal. First, there is mandatory detention during the initial ninety-day removal

period. See 8 U.S.C. § 123 l(a)(2). Second, there is discretionary detention during

any extended removal period. See 8 U.S.C. § 1231(a)(1) (C). Finally, there is

discretionary detention beyond the removal period, for an alien still awaiting

removal. See 8 U.S.C. §§ 123 l(a)(3), 123 l(a)(6). Petitioners-Appellees fall within

the discretionary detention period under Section 1231 (a)(1)(C), and therefore they

could have obtained a custody review. Accordingly, the District Court prematurely

59

afforded them relief under Zadvydas.

CONCLUSION

Based on the foregoing, Respondents-Appellees respectfully request that

this Court reverse the District Courts' January 17, 2003 order, vacate the

injunction, and grant such other relief as may be appropriate.

Respectfully submitted,

ROBERT D. MCCALLUM

Assistant Attorney GeneralCivil Division

DAVID J. KLINE

Principal Deputy Director

Office of Immigration Litigation

Senior L_'_gation Counsel

Office of Immigration LitigationCivil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 616-4858

Dated: March __,_/2003 Attorneys for Respondent

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7), I certify that the

attached brief is proportionately spaced, has a typeface of 14 points or more and

contains 13,998 words.

G Gb. CKSenior Liffgation Counsel

Office of Immigration LitigationCivil Division

U.S. Department of Justice

STATEMENT OF RELATED CASES

Pursuant to the rules of this Court, counsel for the Respondent-Appellant

states that based on a survey of attorneys in his office, the following cases contain

similar factual and legal issues:

Mohamud v. INS, et al., No. 03-35208

sGrnegoDL_Cti_on Counsel

Office of Immigration Litigation

DoD News: Joint Task Force Horn of Africa Briefing Page 1 of 11

DdensU.S. DEPARTMEHT OF DEFEHSE

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Presenter: Maj. Gen. John F. Sattler, USMC, Friday, January 10, 2003commander, Combined Joint Task Force Horn of Africa - 10:02 a.m. EST

Joint Task Force Horn of Africa Briefing

(Special Briefing Via Telephone Onboard the USS Mount Whitney in the Gulf of

Aden. Also participating: Maj. Stephen Cox, public affairs officer, Combined

Joint Task Force Horn of Africa.)

Maj. Cox: Good morning, ladies and gentlemen. I am Major Steve Cox, the

public affairs officer for Combined Joint Task Force-Horn of Africa. Before we

begin the question and answer session with Major General Sattler, I'd like to

provide you a brief opening statement.

About 30 days ago, the headquarters for Combined Joint Task Force-Horn of

Africa arrived on station to oversee operations in support of the global war on

terrorism in the Horn of Africa region. Our mission is to detect, disrupt and defeat

terrorists who pose an imminent threat to coalition partners in the region. We'llalso work with host nations to deny the reemergence of terrorist cells and

activities by supporting international agencies working to enhance long-term

stability for the region.

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Updated: 10 Jan2003

For this operation, we are defining the Horn of Africa region as the total airspace

and land areas out to the high-water mark of Kenya, Somalia, Ethiopia, Sudan,

Eritrea, Djibouti and Yemen.

The CJTF headquarters has about 400 members representing all U.S. armed

services, civilian personnel, and coalition force representatives, all aboard the

USS Mount Whitney, currently operating in the Gulf of Aden. Our force also

includes about 900 personnel at Camp Lemonier in Djibouti, and a small number

of liaison personnel working in other parts of the region.

Given organic assets and the capabilities of U.S. Central Command, CJTF-Hom

of Africa has the capability and will act upon credible intelligence to attack,

destroy and/or capture terrorists and support networks. Our actions in the last 30

days have set the stage for success. We visited all sovereign nations in the region,

http://www.dod.mil/news/Jan2OO3/tO 1102003 tO 110hoa.html 03/21/2003

DoD News:BackgroundBriefing on theHorn of Africa Page1of 19

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News TranscriptOn the web: http:/Jw__ww.defenseJiok,mi[/_gw s/Mar20.02/tQ30829_02JQ3_08ho_,htm]Media contact: media@defenselink.mil or +1 (703) 697-5131Public contact: publi_defenselink.mil or + 1 (703) 428-0711

Presenter: Senior Defense Official Friday, March 8, 2002 - 3:01 p.m. EST

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Updated: 14 Jan2003

Background Briefing on the Horn of Africa

(Background briefing on the terrorist threat in the Horn of Africa)

Staff: Well, first of all, I want to thank you for coming this afternoon. In an effort

to continue to put some context to this war against terrorism, we're holding a

second background briefing -- the second of several that we hope to do. This is

the first regional look at terrorism around the globe, and today we're going to

specifically be looking at terrorist -- the terrorist threat in the Horn of Africa.

Today your defense official, for your notes -- [name and title deleted] --

(laughter). And we'll go ahead and get started.

Over to you, sir.

Defense Official: Thank you.

I'm pleased to be here to speak about the Hom of Africa. rll speak, first and

foremost, about Somalia. I'll also discuss Sudan to a certain degree. I have a

statement that I'll read, and then I guess we can kind of open it up.

Of course, this part of the world is significant in terms of the current war on

terrorism. Terrorists associated with al Qaeda and indigenous terrorist groups

have been and continue to be present in this region. In the long run, the varying

levels of terrorist presence in countries around this region will continue to

challenge regional stability. These terrorists will also enable terrorist networks

who are at large to continue to survive. Finally, these terrorists will, of course,

threaten U.S. personnel and facilities.

As I said, I'll begin with Somalia. Somalia has struggled to establish a fully

functioning government for a decade or more. There are no central govemment

security organs, and the country has a long, porous border, as you can see. For

those not familiar with Somalia, of course, we're talking about the Horn of Africa.

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DoD News: Background Briefing on the Horn of Africa Page 2 of 19

These factors make it a potential haven for some al Qaeda terrorist members, to

include those currently trying to flee Afghanistan. These conditions also make

Somalia a favorable environment for the continuing presence of indigenous

extremists, or extremists who live there.

For instance, the Somali Islamic Union, or aMttihaad aMslamiya -- AIAI -- is a

wide-ranging Islamic group composed of several separate factions in Somalia.

This organization seeks to establish an Islamic state there and engages really in a

wide variety of religious and social activities. AIAI members number in the

hundreds. Some extreme AIAI factions have denounced the Western presence in

Somalia and have threatened U.S. and Western aid groups.

Further, Somali ethnic enclaves in Kenya, Djibouti and Ethiopia exist. These are

countries that are also here in the Horn of Africa. And the AIAI, especially the

extreme factions, may have violent members and sympathizers in these ethnicenclaves.

Osama bin Laden and his senior advisers have made statements in the past

implying that the al Qaeda organization has ties to some violent Somali Islamic

extremists. For instance, bin Laden saluted Somali clan attacks against U.S. Army

personnel in October 1993. These attacks, of course, killed over a dozen U.S.servicemen.

Since 11 September, the year-and-a-half old Transitional National Government in

Somalia has expressed opposition to terrorism. It's claimed it's formed a

committee purportedly to investigate charges of terrorist influence in Somalia,

and it's detained a handful of persons on terrorism-related charges. Overall,

however, the Transitional National Government controls little territory, has only

small, relatively poorly trained and equipped military and police forces, has little

influence in the countryside, and almost no real capability to fight terrorism.

As I said, rll also mention Sudan briefly, given its presence in the region.

Generally, the terrorist presence in Sudan has declined since bin Laden departed

the country for Afghanistan in 1996 at Sudanese urging. A1 Qaeda members

slowly dwindled following bin Laden's departure. However, terrorists continue to

use Sudan as a safe haven. Terrorists there include individuals from al Qaeda,

Egyptian and Palestinian terrorist organizations.

Most groups use Sudan primarily as a secure base for assisting their compatriotselsewhere.

Given Osama bin Laden's stay in Sudan from the early '90s up to 1996, it's

possible Sudan might be a relocation from some al Qaeda terrorists fleeing

Afghanistan in the current campaign.

Since September 1 lth, Khartoum also has voiced opposition to terrorism and

offered cooperation in the war on terrorism. The country is clearly interested in

being removed from its current position on the U.S. list of state sponsors ofterrorism. Khartoum has arrested a small number of extremists since 11

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DoD News:BackgroundBriefing on theHorn of Africa Page3 of 19

Septemberaswell.

Ladiesandgentlemen,thoseconcludemy preparedremarks.I'll behappytoentertainquestionsthatyouhave,to thebestof my ability, ontheHorn of Africa.Sir?

Q: Is there any firm intelligence that al Qaeda members, leaders, whatever have

gone to this area from Afghanistan?

Defense Official: As I said, we're concerned that these are potential relocation

sites for al Qaeda members fleeing Afghanistan. Bin Laden has referenced

Somalia in the past in his open remarks, on videotapes and so on, and of course

he used to live in Sudan for years and probably has lingering infrastructure there.

Q: You say "potential relocation sites." Have they -- have any relocated there, to

the knowledge of intelligence officials?

Defense Official: I'm not able to actually address that specific question. They are

potential relocation sites.

Q: You can't address it because you don't know or you'd rather not say?

Q: He could --

Defense Official: I'd rather not say.

Q: Any particular regions within Somalia where there might be operating camps,

training camps, or -- for either AIAI or multinational organizations?

Defense Official: The country itself is -- struggles to control most of the

countryside. The transitional national government really has very little control.

Press reporting from the past has referenced the south part of Somalia as beingwell outside the sphere of control. If there were a part of Somalia that would be

particularly attractive, it would be this region in the South.

Q: What kind of telecommunications capabilities are there in Somalia? I mean,

what could I use, ifI was in Somalia, to talk to somebody in Afghanistan? Could

I get on the Intemet and send an e-mail? Can I use a cellphone? Can I --

Defense Official: This kind of lies outside the scope of my expertise.

It's my understanding it's a pretty primitive infrastructure there, although there are

some telecommunications capabilities inside the country, and despite kind of

lingering civil war.

Sir?

Q: I know you briefed on Somalia and Sudan, but I'd to ask a question about

Djibouti.

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DoD News:BackgroundBriefing on theHorn of Africa Page4 of 19

Defense Official: Okay.

Q: Because recently appearing before Congress, General Franks said that there

had been credible reporting of al Qaeda and AIAI targeting Western interests in

Djibouti. Can you shed a little light on what he was referring to?

Defense Official: I can't shed any additional light on what he was referring to. I

will say that, as I mentioned, there are Somali ethnic enclaves in Djibouti.

Djibouti is also very -- a rural country, as well, that may lack the robust kinds ofborder controls and so on we find in other areas. So that would be a logical place

for al Qaeda and other Islamic extremists like this extreme AIAI factions to

operate.

Q: What kind of Western interests would we have in Djibouti?

Defense Official: Well, apart from a diplomatic presence and other interests that

we would have their as a routine, there are likely Western aid groups working

there -- Western nongovernmental organizations, and so on.

Sir?

Q: You mentioned that obviously the government of Somalia is nearly

nonexistent, in terms of having control over the country. In your opinion, notgetting into DOD policy, is it your opinion that to go get these terrorists that may

find refuge there, that it's something that the U.S. would have to do largely on its

own or would have to have a presence in the country -- in other words, it can't

rely as much as you are in the Philippines, for example, on local forces to take

care of some of these groups that are connected?

Defense Official: I really can't speculate what we would or wouldn't do, but I will

refer to previous remarks made by the secretary of Defense that we're interested

in helping those who are interested in fighting the war on terrorism. And we'll dowhatever it takes to make sure that terrorists don't kill Americans.

Sir?

Q: Two questions: Do you believe that there are active al Qaeda cells inside

Somalia? And secondly, can you describe for us your understanding of AIAI'slinks to al Qaeda?

Defense Official: Active terrorist cells in Somalia -- bin Laden certainly has

referenced Somalia a number of times in some of these open remarks that he has

made to the world. That in and of itself, I think, is pretty clear evidence bin

Laden's interested in Somalia. His -- that is clearly on his radar scope.

The second part of your question was -- AIAI faction --

Q: What are the ties between AIAI and al Qaeda?

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DoD News:BackgroundBriefing on theHorn of Africa Page5of 19

DefenseOfficial: Okay,again,I think thattheseareorganizationsthataregenerallyIslamicin their view.AI Qaedais certainlyanextremeinterpretationofIslam,andasI mentioned,thereareextremefactionsin theAIAI. While binLadenwouldbekind of a corporatemodel,extremeAIAI members,violentAIAImembersmaybea kind of a franchise element that share that world view that bin

Laden has articulated, so whatever the connections, they certainly share the same

kind of perspective regarding the West, some extreme factions.

Q: But that's another question, as to what is the al Qaeda presence in Somalia.

Clearly, some of these folks share the same world view. But is there a sense that

al Qaeda leaders control parts of AIAI, have members within AIAI? I mean,

besides sharing the world view, what is the strongest direct link that We've been

able to put between those two groups?

Defense Official: I think really that that kind of shared bond, that world view is

the thing that these two organizations share most deeply.

Q: Financial ties, operational ties? Do you have any evidence that they'recommunication with one another?

Defense Official: I really can't go into that level of detail.

Q: What about their history? I mean, have they ever engaged in any terrorist

attacks, either in Somalia or outside of Somalia? I mean, are they, in fact, a

terrorist organization, or is it essentially group with extremist views?

Defense Official: The AIAI extreme factions that we've discussed?

Q: Right.

Defense Official: They clearly threatened -- made threats in the past. Aid workers

have been -- I think one aid worker was killed about a year and a half ago. And as

I said, bin laden certainly saluted violent Somali clan activities in the past.

Q: Has that been in the context of the civil war there, or has it been, you know,

what I think most people would consider terrorist attacks -- things like bombings

against U.S. or foreign interests?

Defense Official: There was, I think, one kidnapping of an aid worker about ayear and a half ago by violent Somalia faction members. So we've had some low

level of activity in the past.

Q: Anything outside of Somalia? Have they been involved in anything outside ofSomalia?

Defense Official: Extreme AIAI members?

Q: Right.

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DoD News:BackgroundBriefing ontheHorn of Africa Page6 of 19

DefenseOfficial: To my knowledge,extremeAIAI membersreallyhavenotengagedin actsof terrorismoutsideSomalia.As I said,this is kind of anindigenousorganizationworking really in Somaliaandwithin ethnicenclavesintheregion.

Q: This is a backgroundbriefing. It is on terrorismin theHorn of Africa. Andyouareonbackground.Why can'tyousaywhetherthere'sevidencethatthereareactiveal Qaedacellsin Somalia?Isn't thatwhat this is all about,to give usinformationonwhetheror not -- I mean,yougive theelliptical answerthatbinLadensayshe'sinterestedin thething,which is prettygoodevidenceof soandso.I mean,is thereevidencethatthereareactiveal Qaedacells in Somalia?

Defense Official: Well, rmjust really not comfortable going in the level of detail

it would require to answer that question as directly as you've asked it. As I said,

clearly bin Laden has saluted Somalis. Clearly Somalia is a place where it would

be appropriate for al Qaeda members to go if there were to flee Afghanistan. And

so this, of course, makes it something that we would be interested in.

Q: Could you explain how it is that AIAI gets classified as a terrorist organization

if they haven't really done anything? They just seem like a bunch of very grumpyIslamic extremists --

Q: (offmike)

Q: How are they terrorists? I don't feel like that o- I don't -- I'm not scared at thismoment.

Defense Official: Sure. The State Department of course is responsible for the

foreign terrorist origination list, as you know. I'm not certain whether, when you

use the words "doing anything" -- as I said, they threatened U.S. and Western aid

groups in the past. Violent Somalis killed a number of U.S. servicemen several

years ago. So l'm not sure what "doing anything" really means, but if that's good

enough for the secretary of State, I think that's why, really, they're on the list.

Q: (offmike) --

Q: On the other question -- sorry. I'm going to try two questions. Do you take -- is

Somalia taken more seriously as a potential haven for al Qaeda militants fleeing

Afghanistan than Yemen, where we do know that we are actively involved in

trying to prevent them from using Yemen as a safe haven? Can you draw any

comparisons?

And my second question is -- well, rll walt on the second.

Defense Official: Okay. Well, "more seriously" kind of denotes a scale. I think

we're serious about all places where al Qaeda members might flee from

Afghanistan. Yemen is, of course, another area where, given the past, as you

know, attack on the USS Cole in October 2000, and so on -- given it's bin Laden's

father's historical homeland, is another place where we think al Qaeda members

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might flee. I don'tthink wecanreally rateor comparethem.Both areimportant,andbothareof concern.Bothwe'reinterestedin.

Q: Okay. Can you -- I'm sorry. Can you elaborate on military -- current military-

to-military activities that we have with -- I mean, we don't really have a working

government there, so I don't know how IMET or some of those other programs

that we've used to establish military-to-military contacts would work.

Defense Official: Yeah.

Q: But can you elaborate at all on U.S. advisers, training, equipment, anything?

Defense Official: I'm sorry. I'm afraid I can't.

Q: Can I ask --

Q: Let me follow up with this. With the naval blockade in the Arabian Sea, and

with the United States essentially controlling Afghan airspace, how can al Qaeda

members get from Afghanistan to the Horn of Africa at this point? And even if

one or -- a few can, a handful can, how could substantial numbers get there?

Defense Official: Well, I can't divine every single way a person might be able to

walk or ride out of the region, but --

Q: Well, what are the risks ?

Defense Official: I think there are a number of ways that fleeing al Qaeda

members could arrive to this part of the world, and I think the secretary of

Defense has been pretty clear on the fact that he believes, and he stated that folks

have fled or are trying to flee through a number of routes. You can't plug every

gap; you can't create secure, guaranteed kinds of cordons for onesies and twosies

who simply seek to walk, in some cases.

Q: To walk from Afghanistan to the Horn of Africa?

Defense Official: To walk to a place where they can get alternative means of

transportation, whether car, boat -- even aircraft. It's just -- it's certainly not a

secure guarantee.

Q: If I'm not mistaken, I think bin Laden, as Frank said, their first actions were in

Somalia and were related to the killings of the Americans in the Mogadishu

situation. Could you explain what bin Laden's history of activity is in Somalia,back in '93 or before, when he was there?

Defense Official: As we talked about, bin Laden was in Sudan in the early 1990s.

And certainly, we've got some physical proximity there between him and hisnetwork members that resided in Khartoum at that time and Somalia. The 1993

event in which violent Somali clan members killed U.S. forces has been saluted

by bin Laden several times. He has praised them in videos and statements and so

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DoD News:BackgroundBriefing on theHornof Africa Page8 of 19

on and referred to them and even implied that his organization was somehow

involved in that -- again, this kinship or this franchise from the bin Laden

Corporation that I mentioned earlier.

Q: Do you know whether they actually were involved in that or whether he's

provided financing or had other connections to it?

Defense Official: Well, I have to really use bin Laden's -- his words and let him

articulate it in this instance. And certainly he has implied that to some degree, his

network was either involved and inspired this event.

Q: Do you have any independent evidence that would corroborate thai?

Defense Official: I'll just going to (sic) let bin Laden's kind of-- words that he's

spoken stand as they are.

Q: Does the military believe --

Q: can I speak for the group here? I think we're all a little frustrated. It seems like

what you're saying is, there is al Qaeda in Sudan and Somalia, but you can't tell usabout it.

(cross talk)

Defense Official: Well, I think what I said --

Q: You haven't even said that!

(cross talk)

Q: (inaudible) -- "Well, I'd rather not get into it," but it sounds like you know

they're there, but you can't tell us.

Defense Official: Well, I didn't say that. What I did say was that this is a country

which would be a logical relocation point. (cross talk)

Q: Yeah, but my questions is, is there evidence -- is there strong evidence that

they're there or not? I mean, you don't have to tell us what the evidence is. (cross

talk)

Defense Official: Yeah.

Q: But just tell us if there's intelligence that leads you to believe that they're there.

Q: (inaudible) -- yes or no, you know. I mean --

(cross talk)

Q: I don't want to really get argumentative, but if--

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Q: Well, I do. (crosstalk)

Q: Well, no, if there'sevidencethatthey'rethere,I mean-- they'rethereor not.Imean,canyou -- andwhycan'tyou tell us if they'rethereor not?I mean,that'swhatthewholepoint of this is, right?

DefenseOfficial: No, thewholepoint of thebriefinghereis to helpyouputsome-- this intocontext.We arenot goingto discusscurrentintelligence,norarewegoingto speculateon futureoperations.Soif yourexpectationis that becauseit'sjust onbackground,thatwe'regoingto talk aboutintelligence,currentintelligence,thenI'm sorry.But the-- (crosstalk) -- butwe arenot going to -- theDefenseofficial is not go!ngto get into current--

Q: Weknow what'sin thepressreports--

Q: Wecouldhavegottenmoreinformation,youknow, readingamagazine.Imean,doesn't-- hewon'teventalk aboutthe factasenioral Qaedaofficial wentto Somaliato train themin thetacticstheyusedagainsttheRussiansinAfghanistan,which theyusedagainstthe "Black Hawk Down" situation.I mean,youknow,whatthehell arewedoinghere?

DefenseOfficial: Is thereaquestionthere?

Q: No one'schallengingthatyou'rebasicallytrying to behelpful here,but allyou'vetold us is theseplacesmightbeaplace-- areanaturalplacewherealQaedamight wantto go,andyou'renot goinganywherebeyondthat. I mean,we'veknownthatfor a longtime and--

Q: Well, we'veknownthat for sixmonths,if not longer--

Q: Maybethere's-- (inaudible)-- thatyou cantell usabout,which I foundveryhelpful in theAfghanistanbriefing.It's just thedifferentgroupsthatarethere,andthedifferentplayers,sothatif perhapswedoget involved,wehavesomecontextfor thenamesof peopleandwhat their associationsare.

DefenseOfficial: Well, gosh,whenI think I readmy statement,I think wetalkedaboutextremefactionsof theAIAI in Somalia, we talked about Egyptian and

Palestinian groups, members of those groups in Sudan --

Q: Right. You don't have any names of people, or can you point on the map as to

where they might be based or how many people might be associated with those

groups?

Defense Official: Okay. I think I mentioned several hundred Somali AIAImembers. It's less of a --

Q: Can you put them on the map and give us some sense of-- I mean, I can

obviously -- I know where Somalia is. (chuckles)

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Defense Official: Okay.

Q: But is there a part of Somalia where AIAI is based? And do they have a leader

that you know by name, that if it were to come up in the news someday, we could

say, "Ah, we learned about that at that background briefing"?

Defense Official: Okay. Well, I'll tell you that the AIAI factions in Somalia are

dispersed throughout the country. We touched briefly on the fact that the South of

Somalia is an area of particular focus. But given the fact that it's a, you know,

relatively rural area and so on, I don't think, apart from major cities, there are any

really enclaves -- specific enclaves I'd recommend to you.

In terms of Sudan, Khartoum, being the capital, is a logical place where folks

would congregate.

Q: Are there any personalities, any people that you can identify to us, spell their

names and tell us a little something about who they are?

Defense Official: I think the one person I would -- or the one element that I

would recommend to you or highlight to you in Somalia in terms of AIAI factionsis a faction that resides in the South near Ras Kamboni -- R-A-S K-A-M-B-O-N-I

-- that has threatened aid workers and so on in the past.

Q: You don't have any names of people that might be involved there.

Defense Official: (No?).

Q: I have a question about -- as much as I know about Somalia is that there's a lot

of different clans and a lot of different warlords that have traditionally been

engaged in civil war. Do we know if al Qaeda is aligned with any specific

warlord of clan that they have traditionally had ties with?

Q: Yeah, what family is most susceptible to this sort of--

Defense Official: AI Qaeda in general has basically in the past kind of

highlighted and saluted AIAI, I think, as a whole, at least in its public remarks.

And as I kind of said, it's an Islamic extremist organization writ large. Its world

view mirrors al Qaeda's in general, especially extreme factions.

Q: No one family, or clan, rather, that's affiliated with this?

Defense Official: Hm-mm. (negative)

Q: Any factions there whose interests are aligned with the United States?

(laughter)

Defense Official: Well, certainly there are organizations there that are seeking

increasing stability. The Transitional National Government is an organization

trying to impose stability on the country. And apart from that, I'm not going to

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really kind of speculate further on potential allies.

Q: (offmike) -- what the Navy may have seen? The proximity between the Hom

and Yemen, that's a pretty short boat ride. In terms of, I don't know, if ships have

been stopped on the way or small boats or other things have been observed? Does

it appear that there may be al Qaeda people traveling by boat between Yemen andthe Horn?

Defense Official: Well, as you point out, it is a very short distance between the

Horn and Yemen. And we've talked about both Somalia and Yemen as being

potential relocation sites for al Qaeda members. I'm not going to talk about

specifics of maritime operations there, but certainly a lot of transit and traffic

through there by small boats -- dhows, for those of you who have been in the

region -- and so on. And I think that that provides opportunities, at least, for fairly

discreet and fairly effective travel.

Q: Anything about Ethiopia? There were some cross-border raids that they've

been involved in over the past. Have they stepped those up against AIAI? Can

you --

Defense Official: Ethiopians have Somali -- ethnic enclaves in their country, as

you know.

They're certainly concerned about the spread of AIAI activities in their country,

as well, and they've clearly articulated this. There have been raids, and they have

publicly expressed their willingness to cooperate with the war on terrorism, as

appropriate.

Q: (off mike) -- increased in any way? Are they amassing more troops along there

or anything?.

Defense Official: I just don't know, to be honest with you, what Ethiopian troopconcentrations are.

Q: (off mike) -- with Kenya? You know, you said the South of Somalia's a

hotbed. Are the Kenyans sort of beefing up patrols on their border, or is there any

sort of activity in that area?

Defense Official: Probably not. I really can't comment on Kenyan troop

movements, as well. I'm kind of a terrorism person.

Q: You said Southern Somalia would be more likely to serve as a haven for al

Qaeda. Why is that? Is that because of its proximity to Kenya, or is that --

Defense Official: What I think I said was, in the South, what we've seen is some

of the more violent and extreme Somali factions kind of concentrate. That fact, in

of itself, would appear to lend the South as being a more receptive kind of part of

the country for fleeing al Qaeda members, given a shared worldview. However,

as I also mentioned, the whole country is basically relatively ungoverned.

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Q: (off mike) -- particular place in the South?

Defense Official: I mentioned Ras Kamboni, which is an area in the South, as

being kind of a haven or a central depository for a faction down there that had

threatened aid workers and U.S. interests in the past.

Q: Could you point it out on the map?

Defense Official: It's in this area down in here.

Q: Was there also an island?

Defense Official: (inaudible) -- right there.

Q: Wasn't there also an island somewhere? (inaudible) -- Island?

Defense Official: Yeah.

Q: Could you give us a better internal discussion of what is going on in Somalia

politically right now? Is there some sort of an active fight for control? How many

different groups are involved? The last time I really paid attention to this was like,

'93-'94, when we were last involved there. So what's been going on since then?

And it just completely lawless, or has it been carved up into small pieces?

Defense Official: The transitional national government has been in place for

about a year and a half now.

Q: Who -- (inaudible) -- them?

Defense Official: It was basically kind of elected, and I can actually ask my

colleague here, who's an expert on the area, to chime in, as well.

Staff: Me?

Q: Thank you. (giggles)

Staff: Just a couple of little basics about Somalia: Try to think of the countries

being sort of schizophrenic. There are really three entities within Somalia. Here in

the Northwest, you've got Somaliland.

It declared its independence in the early '90s. It's fairly stable by Somali standards

-- not really any power struggle going on here.

To its east, in the Northeast, you have an area called -- known as Puntland. In

Puntland there is a power struggle going on between two rivals for presidency,Yusuf-- Abdullahi Yusuf and President Jama Ali Jama.

In the South -- and we've talked a lot about the South -- this is what we might call

Somalia proper. It begins about right here, where Somalia comes across the map.

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Hereyouhaveseveralwarlordscompetingfor control,andin Somalia"control"generallydealsnot in thepolitical sense,aswe think, controlof thegovernment,butcontrolof resourcesthat,in turn, bringrevenue.And soin theSouthweseeoccasionallylots of fighting for controlof theportsandairfields,becausethesearetransitpointsfor sourcesof revenue.

Q: Fightingbetweenwhomor amongwhom?

Staff: Warlordleaders.Warlordsareaffiliated with clans,andyouknow therearesixclan families in Somalia.Two of themajorclan familiesarein theNorth,andthey'rebothfairly homogeneous.That'swhy Puntland'sgot stability, andSomaliland.But four of the largerclanfamiliesall arein the South,andtheytendto competeagainstoneanotherfor sourcesof income.

Q: Is thereonethat'spreeminentamongthem?Are theyall pretty equalin theSouth?

Staff: Well, aroundMogadishu,HabrGedrclan isprobablydominant,but that'sapocket.And in otherplaces,theDher(sp)andotherclan families-- (inaudible)--aremore-- havemoreinfluence.

Q: Whatpercentageof thecountrydoesthatnationalarena-- whatever--governmentcontrolright now?

Staff: Well, I can'tpercentizeit, but I will saythis: Theycontrol aportionof thecapital,Mogadishu,anda smallcorridorstretchingalongthecoasttowardsKismayu.

Q: That's--

Staff:Yeah.Very weakcontrol.That'saboutit. Theywere-- they,the transitionalnationalgovernment,TNG, was established in August of 2000, with the

inauguration of their president. (Pauses.) I'm going to slip on his name right now.

It'll come back to me, and I'll just shout it out. (Laughter.)

Q: (off mike)

Defense Official: Abdikassim, yes. With his inauguration in August of 2000, the

TNG is not recognized by the U.S. government, but someone mentioned what is

Kenya's interest here. It's not so much in beefing up their borders, but Kenya,

Nairobi, has taken an active role in trying to ensure Somali reconciliation. And

they think that's the key. And so they have sponsored several talks -- and one's

slated for next month -- to try to reconcile the various clan factions that I spoke

about fighting in the south with the TNG.

Q: Two quick questions. One, Djibouti. If memory serves, at one time or maybe

still, the U.S. Navy refueled there.

Q: Was looking at refueling.

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Q: Waslooking at refueling?

Q: After Yemen.After theColebombing.

(off mikecrosstalk)

Defense Official: (inaudible)

Q: AI! right, second question was, and maybe this is something you can't answer,

but I get the sense from what you've said here today that your biggest concern is

more al Qaeda fleeing Afghanistan and going here, setting up a new base or

having another safe haven, more than you're concerned about what's going on

there and who we need to go and track down inside these countries, because you

talk about them sharing a world view. I mean, that doesn't seem too strong to me,because Osama bin Laden shares a world view with Palestinian militants too, but

we're not going after them. And, you know, these open spaces, as you said --

(inaudible) -- with the Palestinian -- (inaudible)

So, is it more that people will go there, or is it there are people there that you need

to go get?

Defense Official: Hopefully I've made it clear. I think it's really both. We

certainly want to deny safe haven for al Qaeda members fleeing Afghanistan

wherever they would flee to. And these are logical places they may consider. And

as I did mention in my opening remarks, that we've had threats from extreme

factions of the AIAI. We're clearly concerns about Sudan's position on the state

sponsors of terrorism list. As I mentioned, there are Palestinian and Egyptian

terrorists in Khartoum. As you know, Egyptians certainly fight side by side with

bin Laden and some of his senior deputies are Egyptians. So, hopefully it's clearthat we're concerned about both.

Q: Are AIAI -- is it associated with a particular clan, or is it outsiders, or --

Defense Official: It's not really associated with a particular clan. It's more of aworld view.

Q: But is it outsiders, or are they Somalians or are they --

Defense Offieiah No, they're Somalis.

Defense Official: Somalis, right.

Q: Have you told --

Defense Official: This gentleman here..

Q: Can I ask about Aidid the younger. What is he up to? Who is he aligned with?He's the son of the I think now late-warlord.

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Defense Official: That's correct.

Aidid the younger is allied with a loose coalition of southern warlords called theSRRC, Southern Reconciliation Restoration Council. They oppose the TNG. And

he's the co-president.

Q: They're opposed to the TNG, the provisional government or whatever it is.

Defense Official: Correct.

Q: Are they doing anything about it? You know, are they fighting with the TNG?

Defense Official: There are skirmishes from time to time.

Q: What are his attitudes about the United States?

Defense Official: I do not know.

Q: Wasn't he a Marine?

Q: (offmike) -- Marine, yeah.

Defense Official: That is true, that he's -- (laughter). One thing about Somalis --

and Aidid the younger is a Somali -- clan interests supersede religious interests

and other interests. And when we speak of AIAI, one reason they haven't had

success in fulfilling their charter of creating this Greater Somalia is because theclan interests often conflict with their views. And we've talked about -- we've

listed several reasons why Somalia would be a possible safe haven for fleeing al

Qaeda, talked about the 3,200 kilometer porous border there on the coast, and the

weak central government in parts of Mogadishu. But there are some reasons why

Somalia would not be a good place, and one is the clan structure, the clan family.

A1 Qaeda members, especially foreign nationals, would tend to stick out among

the Somalia population, which is ethnically unique to the area. And I've also

mentioned that Somalis tend to be pragmatists. If given an opportunity to rum

over someone for a reward, chances are they'd take that bet. So, as stated, there

are some reasons why this might be a potential safe haven, but there are also

reasons why Somalia is not such a good choice, especially for higher-profilemembers.

Q: (off mike) -- banded together?

Defense Official: I'm not saying that, but I'm just kind of pointing out what's

unique about Somalia.

Q: Is there a lot of hiding places there? I mean, is there empty space? Howdistributed is it?

Q: (off mike) (laughter)

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Q: How distributedis thepopulation?Is thereapossibility to couldgo thereandfind safehavenawayfrom clans?

DefenseOfficial: Yes.

Q: Why do theycall it theTransitionalNationalGovernment?Whataretheytransitioningto?

DefenseOfficial: A viablecentralgovernmentthat'srecognizedby all Somalis.And--

Q: (off mike) (laughter)

DefenseOfficial: Not sowell.

Q: Okay.Sotheir nameimpliesthattheywant to get-- (inaudible).

DefenseOfficial: Yes.And theyrecently,accordingto press,haveexpandedtheir cabinetto invite oppositionmembersto becomecabinetministers.

And this is all apartof thereconciliation-- restorationprocessthat'songoing.

Q: Couldyou --

Q: Did you saytheAIAI strongholdis in the South?

Q: That'swhathesaid.

DefenseOfficial: Whatwesaidwasthatof thevariousAIAI factions,werecognizethatsomein theSouthhavethreatenedWesternandaid workersin thepast.I think AIAI is fairly dispersedamongseveralSomali factions.

Q: But AIAI --

Q: Youcan'tpinpoint whichof thethreeregionsof Somaliayou --

Defense Official: Right.

Q: -- would say that it has its strongest presence in?

Defense Official: It would be safe to say that post- September 1 lth, AIAI became

less visible intentionally and for obvious reasons. And so there's no particular

area that is an AIAI stronghold, per se.

Q: In the aftermath --

Q: Isn't it probably true that AIAI wasn't of interest to us before September 1 lth

because it was home-grown, it had no reach, it no alliances and no potential?

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Defense Official: Was that a question?

Q: Sure.

Defense Official: I can tell you that AIAI has been of interest to us, given its

worldview, some of the threats that it has made in the past.

Q: Haven't elements of the group, though, also conducted legitimate activities?

Defense Official: Absolutely. As I said in my opening statement, is certainly the

organization at large is engaged in a wide variety of religious and social activities.

Q: Can you talk a little bii about Ras Kamboni? I remember, right after

September 1 lth, there was reporting in the press that talked about how there had

supposedly been some kind of a terrorist training camp there. There were

subsequently reports -- there's no doubt you can't discuss -- of U.S. surveillance

of the area, to check it out. At this point, do you think there are al Qaeda or other

what you call terrorist groups training or living on Ras Kamboni, which, I gather,

refers to the island, as well as to the town opposite it on the mainland?

Defense Official: I've seen those same reports. As I said, the whole area and that

area in particular is of interest to us, and I'm just going to leave it at that.

(cross talk)

Q: (inaudible) -- follow up on something here.

Q: Can you say anything about what's happened in Ras Kamboni since the first

week after September 1 lth?

Defense Official: Yeah, I'm going to decline to talk about that, yeah.

Q: I just want to follow up: Do you know any more than Mr. off-the-recordsource knows about the telecommunications infrastructure in Somalia, how it's

being rebuilt, any of the utilities that --

Defense Official: No. No, I do not.

Q: Can you recommend somebody who might be able to tell us a little bit moreabout that?

Defense Official: Honestly, no. Maybe some of your colleagues in the foreign

press are better attuned to what companies are stood up.

I read something recently from -- is it Irin, I-R-I-N, that an Internet service

provider recently came back into play in Somalia. So perhaps that's a goodSOurCe.

Q: Why doesn't the United States recognize this transitional government? What

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kind of, quote,"election"wasthis?I mean,wasit internationallyrecognized?Wasit not legitimate?

DefenseOfficial: It's notjust theUnitedStates.Most of the -- manycountriesdonot recognizetheTNG'sauthority.

Q: Why?

DefenseOfficial: I don'tparticularlyhaveareasonwhy. It'sjust -- it's a state--

Q: I mean,wasit a legitimateelectionor what?

DefenseOfficial: Their creationwasanextensionof apeaceprocess.The United

States was not involved in that peace process.

Staff: We have time for one more if you've got one more.

Q: How many factions are in AIAI? You referred to several factions.

DefenseOfficiah Gosh, I think it's fairly well splintered out. Halfa dozen is --

Q: (offmike) -- among a couple of hundred people in AIAI?

Defense Official: Yeah.

Q: Do they have a leader, he, she, a figurehead or whatever?

Defense Official: Each faction does have a leader. I think leadership often shiftsaround.

Q: How about overall, as a group?

Q: There's no Osama bin Laden for AIAI.

Defense Official: No, it's factionalized and fairly decentralized.

Staff: Thank you.

Q: Thank you very much.

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AND NATIONALITy

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IMMIGRATION AND NATIONALITY 8 USCS § 1253

USCS § 1252(h) though so placed prior to effec-

tive date of Immigration and Nationality Act of

1952. Ex pane Vasquez (1954, DC Cal) 122 F

Supp 160.

Sentence of alien under state law to periodic

imprisonment does not constitute "imprison-

ment" as term is used in 8 USCS § 1252(h);

although deportation is stayed in order to allow

state to complete criminal proceedings against

alien, sentence to periodic imprisonment i_astead

of probation or complete release does not create

equitable bar to alien's deportation. Talc Cheong

Hau v Moyer (1983, ND I11) 576 F Supp 844.

INS detainer served on alien in prison for

drug conviction may not be removed in habeas

corpus proceeding as alien is not in custody ofINS; since sentenced inmate cannot be deported

while imprisoned, INS may not consider release

or custody of alien until after his release from

prison; INA § 242(a) [8 USCS § 1252(a)] is not

triggered until person is subject to deportation

and in custody of Attorney General; alien has no

legitimate statutory or constitutional entitlement

to prison-sponsored rehabilitative programs, suchas placement in community treatment center

after release from which he may be denied access

as result of detainer and consequently alien may

not invoke any claim to prompt deportation

hearing. Fernandez-Collado v Immigration &

Naturalization Service (1986, DC Corm) 644 F

Supp 741.

§ 1253. Countries to which aliens shall be deported

(a) Acceptance by designated country; deportation upon nonacceptance bycountry. The deportation of an alien in the United States provided for inthis Act, or any other Act or treaty, shall be directed by the AttorneyGeneral to a country promptly designated by the alien if that country iswilling to accept him into its territory, unless the Attorney General, in hisdiscretion, concludes that deportation to such country would be prejudicialto the interests of the United States. No alien shall be permitted to makemore than one such designation, nor shall any alien designate, as the placeto which he wishes to be deported, any foreign territory contiguous to theUnited States or any island adjacent thereto or adjacent to the UnitedStates unless such alien is a native, citizen, subject, or national of, or had aresidence in such designated foreign contiguous territory or adjacent island.If the government of the country designated by the alien fails finally toadvise the Attorney General within three months following original inquirywhether that government will or will not accept such alien into itsterritory, such designation may thereafter be disregarded. Thereupondeportation of such alien shall be directed to any country of which suchalien is a subject, national, or citizen if such country is willing to accepthim into its territory. If the government of such country fails finally toadvise the Attorney General or the alien within three months following thedate of original inquiry, or within such other period as the AttorneyGeneral shall deem reasonable under the circumstances in a particularcase, whether that government will or will not accept such alien into itsterritory, then such deportation shall be directed by the Attorney Generalwithin his discretion and without necessarily giving any priority or prefer-ence because of their order as herein set forth either-

(l) to the country from which such alien last entered the United States;(2) to the country in which is located the foreign port at which suchalien embarked for the United States or for foreign contiguous territory;(3) to the country in which he was born;

(4) to the country in which the place of his birth is situated at the timehe is ordered deported;

611

8 USCS § 1253 ALIENS AND NATIONALITY

(5) to any country in which he resided prior to entering the countryfrom which he entered the United States;

(6) to the country which had sovereignty over the birthplace of the alienat the time of his birth; or

(7) if deportation to any of the foregoing places or countries is impracti-cable, inadvisable, or impossible, then to any country which is willing toaccept such alien into its territory.

Co) Deportation during war. If the United States is at war and thedeportation, in accordance with the provisions of subsection (a), of anyalien who is deportable under any law of the United States shall be foundby the Attorney General to be impracticable, inadvisable, inconvenient, orimpossible because of enemy occupation of the country from which suchalien came or wherein is located the foreign port at which he embarked forthe United States or because of reasons connected with the war, such alienmay, in the discretion of the Attorney General, be deported as follows:

(I) if such alien is a citizen or subject of a country whose recognizedgovernment is in exile, to the country in which is located that govern-ment in exile if that country will permit him to enter its territory; or

(2) if such alien is a citizen or subject of a country whose recognizedgovernment is not in exile, then to a country or any political orterritorial subdivision thereof which is proximate to the country ofwhich the alien is a citizen or subject, or, with the consent of thecountry of which the alien is a citizen or subject, to any other country.

(c) Payment of deportation costs; within five years. If deportation proceed-ings are instituted at any time within five years after the entry of the alienfor causes existing prior to or at the time of entry, the cost of removal tothe port of deportation shall be at the expense of the appropriation for theenforcement of this Act, and the deportation from such port shall be at theexpense of the owner or owners of the vessels, aircraft, or other transporta-tion lines by which such alien came to the United States, or if in theopinion of the Attorney General that is not practicable, at the expense ofthe appropriation for the enforcement of this Act: Provided, That the costsof the deportation of any such alien from such port shall not be assessedagainst the owner or owners of the vessels, aircraft, or other transportationlines in the case of any alien who arrived in possession of a valid unexpiredimmigrant visa and who was inspected and admitted to the United Statesfor permanent residence. In the case of an alien crewman, if deportationproceedings are instituted at any time within five years after the granting ofthe last conditional permit to land temporarily under the provisions ofsection 252 [8 USCS § 1282], the cost of removal to the port of deportationshall be at the expense of the appropriation for the enforcement of this Actand the deportation from such port shall be at the expense of the owner orowners of the vessels or aircraft by which such alien came to the UnitedStates, or if in the opinion of the Attorney General that is not practicable,at the expense of the appropriation for the enforcement of this Act.

612

IMMIGRATION AND IN

(d) Cost of deportationings are instituted latercase of an Mien crewm,

conditional permit to 1from the appropriation

(e) Refusal to transpor*master, commanding cvessel, aircraft, or other

General to t

estination specified anthis Act, or a failurt

of the Attorney,the requirements ,penalty in the surf

§(f) of expens,

of the Attorn_

being deported isGeneral shall

who shall acc_incident to su_

the deportinor to defray

by subsectio_

(g) delayingthe General

delays of tsubject, theofficers the!tinue the issuance ofresidents such couninform ol

(h) of delnot return241_ [8 USCS

that sucl:

country accounparticular gro_(2) [ph"(1) sl

determines _hat--(A) the _lien ordthe pcrse__ution ofmembersl_p in a ](B) the _licn, hparticularl_ seriol

the United _tates;

8 USCS § 1231 ALIENSAND NATIONAJLrl_

(7) Employment authorization. No alien ordered removed shall be eligibleto receive authorization to be employed in the United States unless theAttorney General makes a specific finding that-

(A) the alieri cannot be removed due to the _-efusal of all countries

designated by the alien or under this section to receive the alien, or(B) the removal of the alien is otherwise impracticable or contrary. tothe public interest.

(b) Countries to which aliens may be removed. (1) Aliens arriving at theUnited States. Subject to paragraph (3)--

CA) In general. Except as provided by subparagraphs (B) and (C), analien who arrives at the United States and with respect to whomproceedings under section 240 [8 USCS § 1229a I were initiated at thetime of such alien's arrival shall be removed to the country in whichthe alien boarded the vessel or aircraft on which the alien arrived in theUnited States.

(B) Travel from contiguous territory. If the alien boarded the vessel oraircraft on which the alien arrived in the United States in a foreignterrito W contiguous to the United States, an island adjacent to theUnited States, or an island adjacent to a foreign territow contiguous tothe United States, and the alien is not a native, citizen, subject, ornational of, or does not reside in, the territory or island, removal shallbe to the country, in which the alien boarded the vessel that transportedthe alien to the territory or island.

(C) Alternative countries. If the government of the country designatedin subparagraph (A) or (B) is unwilling to accept the alien into thatcountry's territory, removal shall be to any of the following countries,as directed by the Attorney General:

(i) The country of which the alien is a citizen, subject, or national.

(ii) The country in which the alien was born.

(iii) The country in which the alien has a residence.(iv) A country with a government that will accept the alien into thecountry's territory if removal to each country described in a previ-ous clause of this subparagraph is impracticable, inadvisable, orimpossible.

(2) Other aliens. Subject to paragraph (3)--

(A) Selection of country by alien. Except as otherwise provided in thisparagraph--

{'i) any alien not described in paragraph (1) who has been orderedremoved may designate one country to which the alien wants to beremoved, and

0i) the Attorney General shall remove the alien to the country thealien so designates.

(I3) Limitation on designation. An alien may designate under subpara-graph (A)(i) a foreign territory, contiguous to the United States, anadjacent island, or an island adjacent to a foreign territou contiguous

188

INfi,,,lIGtLATION AND

to the United Suonly if the alienin. that designat

/C) Disregardirdesignation un(

(i) the alien to(ii) the .'rn menGeneral witfirst inqui . "wheti

country':(iii) the )vernmeninto the o_

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(E) dditional remo'under the pr_

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The country, fn

i) The country indien left for the Uio the United Statc

(iii) A country in wcountry from whicl

(iv) The country in

(v) The country thathe alien wa_ born.

fvi) The country inalien is ordered ren

(vii) If impracticab;to each country d_another country wlcountry'.

(F) Removal country'States is at war and t

cable, inadvisable, inc(

¢D NATIONALITY

ved shall be eld States the

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been orderedlien wants to be

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contiguous

IMMIGRATION AND NATIONALITY 8 USCS § 1231

to the United States as the place to which the alien is to be removed

only if the alien is a native, citizen, subject, or national of, or has resided

in, that designated territory or island.

(C) Disregarding designation. The Attorney General may disregard adesignation under subparagraph (A)(i) if-

(i) the alien fails to designate a countrry promptly;

(ii) the government of the country, does not inforTn the AttorneyGeneral finally, within 30 days after the date the Attorney General

first inquires, whether the government will accept the alien into the

country;

(iii) the government of the country is not willing to accept the alien

into the country.; or

(iv) the Attorney General decides that removing the alien to the

country is prejudicial to the United States•

(D) Alternative country. If an alien is not removed to a country

designated under subparagraph (A)(i), the Attorney General shall

remove the alien to a country of which the alien is a subject, national,

or citizen unless the government of the country---

(f) does not inform the Attorney General or the alien finally, within

30 days after the date the Attorney General first inquires or within

another period of time the Attorney General decides is reasonable,

whether the government will accept the alien into the country.; or

(ii) is not willing to accept the alien into the country. _-(E) Additional removal countries. If an alien is not removed to a

country under the previous subparagraphs of this paragraph, the At-

torney General shall remove the alien to any of the following countries:

(i) The country from which the alien was admitted to the UnitedStates.

(ii) The country in which is located the foreign port from which the

alien left for the United States or for a foreign territory contiguousto the United States.

(iii) A country in which the alien resided before the alien entered thecountry from which the alien entered the United States.

(iv) The country in which the alien was born.

(v) The country, that had sovereignty over the alien's birthplace whenthe alien was born.

(vi) The country in which the alien's birthplace is located when thealien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the alien

to each country described in a previous clause of this subparagraph,

another country, whose government will accept the alien into thatcount_'.

(F) Removal country when United States is at war. When the United

States is at war and the Attorney General decides that it is impracti-

cable, inadvisable, inconvenient, or impossible to remove an alien under

189

CERTIFICATE OF SERVICE

I hereby certify that on this____..s4iay of March, 2003, I caused two copies of

the foregoing Brief For Respondent-Appellant was served upon Petitioner-Appellees

by Federal Express for next business day delivery, addressed to:

Thomas L. Boeder

Nicholas P. Gellert

Karol E. Brown

Perkins Coie, L.L.P.

1201 Third Avenue, Suite 4800

Seattle, WA 98101-3099

Jay W. StansellAssistant Federal Public Defender

1111 Third Avenue, Suite 1100

Seattle, WA 98101-3207

Counsel For Petitioner-Appellees

GREG D. Iv_CK "_.Senior Liffgation Counsel

Office of Immigration LitigationCivil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

(202) 616-4858