Jama v. Immigration and Customs Enforcement
The Court ruled that federal immigration law does not require a foreign country's advance consent before the government can remove a deportable alien to that country under the law's third-step options (such as country of birth), so long as removal there isn't impracticable or impossible.
The decision let the government deport a Somali refugee to Somalia even though Somalia had no functioning government able to formally agree to receive him, resolving a split over how much diplomatic advance approval U.S. deportation law demands.
“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”
The Court's reasoning for why silence about acceptance in most of the statute was likely intentional.
How it got here: A federal district court agreed removal required advance consent; the Eighth Circuit reversed, and the Supreme Court granted certiorari to resolve the statutory question.
The Case in Depth
What happened
Keyse Jama, a Somali-born refugee, had his refugee status revoked after a criminal conviction and was ordered removed to Somalia, his country of birth and citizenship. He argued Somalia had no functioning government able to consent in advance to receiving him, and that federal law barred sending him anywhere without such consent. He challenged the removal order through a habeas petition rather than direct appeal.
The question before the Court
When deporting someone to a country he has some connection to but isn't a citizen of, does the government first need that country's advance agreement to take him?
The Court's answer
No — the Court ruled that when the government selects a removal destination under the third step of the statute (a country tied to the alien by birth, prior residence, or similar connection, but not citizenship), it does not need that country's advance agreement to take the alien. The statute expressly requires acceptance at the first, second, and final catch-all steps, but Congress left that requirement out of the six third-step options, and the Court read that omission as deliberate rather than accidental.
The absence of advance consent only matters if it makes removal there 'impracticable, inadvisable, or impossible' — a judgment left to the Attorney General (now the Secretary of Homeland Security). Because deportation flights to Somalia had actually been happening despite no formal government response, the Court found the lack of advance consent did not make removal impossible here.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Immigration officials can deport people to countries with unstable or nonexistent governments — like Somalia at the time — without first securing formal advance acceptance, as long as removal isn't practically impossible. This affects refugees and other removable immigrants whose home countries lack functioning governments to negotiate with in advance.
What changes now
This is a final merits decision resolving the statutory question; the judgment affirming the Eighth Circuit's ruling stands, meaning the government could proceed with removing Jama to Somalia. The ruling settles, for future cases, that the third-step removal options in the statute carry no advance-acceptance requirement, though it leaves open related questions the parties didn't raise, such as whether Somalia even counted as a 'country' for these purposes.
What this does not decide
The Court expressly declined to decide whether Somalia qualifies as a 'country' under the statute given its lack of a functioning government, since that argument wasn't raised below. It also left open whether the second step (removal to a citizen's home country) truly requires that country's consent.
Concurrences and dissents
Dissent — Justice Souter
“In my judgment, the acceptance requirement applies to all seven; the Court's contrary conclusion is at war with the text, structure, history, and legislative history of the statute, and I respectfully dissent.”Souter's core objection that the majority's reading contradicts the statute's history and structure.
Justice Souter argued the acceptance requirement should apply to all seven country options at the third step, not just the last-resort option, based on the statute's text, structure, drafting history (Congress's deliberate change from 'any' to 'another'), and a long line of pre-1996 judicial and administrative rulings requiring consent. He also warned that the majority's reading lets the government circumvent the explicit acceptance requirement at the second step by simply moving to the third step, since an alien's country of citizenship nearly always overlaps with one of the third-step options. He would have reversed the Eighth Circuit.
How the Court got there
The legal reasoning, step by step
- The Court read the removal statute as setting out four sequential steps for picking a destination country, and examined where Congress had expressly attached consequences for a country's refusal to accept a deportee.
- Because Congress explicitly wrote acceptance conditions into the first, second, and final (fourth) steps but wrote none into the six options making up the third step, the Court inferred the omission was deliberate rather than an oversight, applying the interpretive principle that Congress knows how to write a requirement when it wants one.
- The Court applied the grammatical 'rule of the last antecedent' — that a limiting phrase ordinarily modifies only the term it immediately follows — to conclude that the word 'another' in the final catch-all option did not import an acceptance requirement back into the six preceding third-step options.
- The Court rejected the argument that letting the government pick a third-step country effectively lets it dodge the second step's acceptance requirement, finding that even the first and second steps already give the government discretion to disregard a country's refusal in some circumstances, undermining any assumption that acceptance is required uniformly throughout the statute.
- The Court declined to treat lower-court rulings requiring acceptance under the old pre-1996 deportation law as a 'settled construction' Congress must have ratified, because those rulings were sparse, the statute was substantially rewritten in 1996, and a parallel line of cases under the old exclusion law had rejected any acceptance requirement.
- Concluding that no advance-acceptance requirement applies to the third step, the Court found that a country's lack of a functioning government to give advance consent does not by itself make removal there 'impracticable, inadvisable, or impossible.'