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Supreme Court Roundup: Justices Agree to Hear Two Deportation Cases
February 24, 2004
By LINDA GREENHOUSE
WASHINGTON, Feb. 23 - An immigrant who has been deported to
Haiti and another facing imminent deportation to Somalia
persuaded the Supreme Court on Monday to hear their
appeals, each raising a separate and disputed question of
current immigration law.
The issue in the first case is whether a conviction for
drunken driving that causes injury can be considered an
"aggravated felony," which makes a lawful permanent
resident subject to deportation. In 2002, the government
deported Josue Leocal, a Haitian-born resident of Miami,
after he served a two-year state prison sentence for
causing "serious bodily injury" while driving under the
influence of alcohol.
Under Florida law, that offense is a "crime of violence,"
which in turn is part of the definition of "aggravated
felony" under federal immigration law. The lower federal
courts have disagreed on whether drunken driving can
appropriately be placed in that category. Mr. Leocal had no
previous arrests during his 19 years in the country.
The question in the second case is whether natives of
Somalia, many who came here as refugees, can be sent back
without the consent of the Somali government.
A Somali man, Keyse G. Jama, who entered the United States
as a 17-year-old refugee in 1996, is arguing that federal
law requires the consent of the receiving country before
someone can be deported there. He was convicted of assault
in Minnesota after a fight with another Somali man.
Somalia has no central government, and the United States
has no diplomatic relations with the country. Nor does
Somalia issue passports. Before a federal district judge in
Minneapolis granted Mr. Jama's petition for a writ of
habeas corpus, federal immigration officials had planned to
take him to Dubai and put him on a flight from there to
Somalia.
At that point, his lawyers say, he would have become "a
stateless person with no travel documents or identity
papers in a war-torn region with no central government." He
is represented by Minnesota Advocates for Human Rights and
without charge by Briggs & Morgan, a Minneapolis law firm.
An analysis of Somali deportations that was prepared by
the Justice Department's Office of Legal Counsel in 2002
concluded that "there exist extraordinary and temporary
conditions in Somalia" that prevent the safe return of
Somali citizens.
In both cases, the Bush administration urged the Supreme
Court to reject the appeals.
In the Somali case, Jama v. Immigration and Naturalization
Service, No. 03-674, the administration said the United
States Court of Appeals for the Eighth Circuit, in St.
Louis, had correctly interpreted immigration law not to
require the consent of the receiving country. The appeals
court overturned the district court's grant of habeas
corpus, but delayed issuing its opinion until the Supreme
Court could review the case.
If consent were required, the administration told the
justices, "foreign governments could prevent the United
States from repatriating their nationals merely be failing
to indicate acceptance of the repatriation."
The United States has deported 200 Somalis since 1997. In a
separate case last year, a panel of the United States Court
of Appeals for the Ninth Circuit, based in San Francisco,
issued an injunction barring further deportations to
Somalia. The administration is seeking a rehearing by the
full appeals court.
In the drunken driving case, Leocal v. Ashcroft, No.
03-583, the administration told the court that the case was
inappropriate for review for procedural reasons. The
relationship between drunken driving felony convictions and
federal immigration law presents "difficult questions," the
administration said.
The federal appeals courts are divided on the issue, with
most ruling that drunken driving offenses, even those
involving injury or death, cannot be considered crimes of
violence without proof of some degree of criminal intent.
In the Leocal case, the United States Court of Appeals for
the 11th Circuit, in Atlanta, held that it lacked
jurisdiction to consider Mr. Leocal's appeal from an order
of the Board of Immigration Appeals. Mr. Leocal is being
represented without charge by the King & Spalding law firm
here.
In a separate development, the Sierra Club formally asked
Justice Antonin Scalia to recuse himself from hearing Vice
President Dick Cheney's appeal before the Supreme Court on
whether he is legally entitled to keep secret the
proceedings of his energy task force.
The Sierra Club, which sued for release of the information,
is arguing that after Justice Scalia's duck-hunting trip
with the vice president last month, his impartiality is
open to reasonable question - a test for a judge's
disqualification under federal law - and notes that in fact
it has been widely questioned in news accounts and
editorials around the country.
http://www.nytimes.com/2004/02/24/politics/24SCOT.html?ex=1078656060&ei=1&en=d21262bb8da0636d
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