The New York Times      February 24, 2004

 

Justices Agree to Hear Two Deportation Cases

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.