\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2005 \ FEDERAL REGISTER FINAL REGULATIONS - 2005 \ Execution of Removal Orders; Countries to Which Aliens May Be Removed [70 FR 661] [FR 1-05] \ 3. Acceptance Under Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2)
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Acceptance Under Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2)
Several commenters generally contended that section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), requires acceptance by the government of a country in all circumstances, and that, absent acceptance, the Executive Branch's authority is legally circumscribed. As discussed in more detail below, the so-called “acceptance requirement” is not a requirement that precludes the Executive Branch from exercising its authority; in fact, there is no general “acceptance requirement” that precludes action as a legal matter,
with the exception contained in section 241(b)(2)(E)(iv) of the Act, where the acceptance itself provides the only connection between the alien and the removal country at issue. Instead of labeling the general acceptance language in section 241(b)(2) of the Act as a general “acceptance requirement,” it is more appropriately labeled the “acceptance exception,” in that parts of section 241(b)(2) of the Act release the Secretary of Homeland Security from the mandatory language of “shall remove” if certain cir
cumstances are not present, one of those circumstances being acceptance by the government of a country. In this regard, there is a difference between a legal requirement that precludes the Executive Branch from exercising its authority generally, which is what the commenters' proposed interpretation would create, versus a consideration that enables the Executive Branch to carry out its obligations under the Act, while continuing to balance the foreign policy considerations of its actions. Additionally, the
question of whether removal should be effectuated absent acceptance by the government of the removal country is a separate inquiry; that question has no bearing on whether the Secretary of Homeland Security is authorized to do so.
In construing the Act, the Supreme Court repeatedly has held itself “bound to assume that the legislative purpose is expressed by the meaning of the words used.” INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987) (internal quotations omitted). That approach is consistent with the Court's more general admonition that “[t]he plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions o
f its drafters.' “ United States v. Ron Pair Enters. Inc., 489 U.S. 235, 242 (1989) (alteration in original); see also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[A] legislature says in a statute what it means and means in a statute what it says there.”). As set forth below, except for section 241(b)(2)(E)(vii) of the Act, the language of section 241(b)(2) of the Act does not require, as a legal prerequisite, that acceptance be obtained before removal of an alien.
First, section 241(b)(2)(A)-(C) of the Act, which is generally the first step in the country-of-removal inquiry, addresses removal to a country designated by the alien. In pertinent part, those provisions state that the Secretary of Homeland Security “shall remove” an alien to the country designated by the alien (section 241(b)(2)(A) of the Act), but that the Secretary “may disregard a designation” if “the government of the country is not willing to accept the alien into the country” (section 241(b)(2)(C)(i
ii) of the Act) or if the Secretary “decides that removing the alien to the country is prejudicial to the United States” (section 241(b)(2)(C)(iv) of the Act). It is important to note that within this provision, Congress employed both the mandatory term “shall” and the permissive term “may.” The use of both these words within the same subsection is highly instructive. See, e.g., United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The word `may,' when used in a statute, usually implies some degree of discre
tion.”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (attaching significance to the fact that “Congress' use of the permissive `may' in [18 U.S.C.] 3621(e)(2)(B) contrasts with the legislators' use of a mandatory `shall' in the very same section”); Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (“[W]hen the same [Federal Rule of Civil Procedure] uses both `may' and `shall,' the normal inference is that each is used in its usual sense--the one being permissive, the other mandatory.”). Accordingly, the statute ma
ndates that the Secretary “shall remove” an alien to the country designated, but also provides that the Secretary “may” disregard the designated country of removal if the government of the country is not willing to accept the alien. Nowhere does it require that the Secretary must, as a legal matter, disregard that designation. Far from containing an “acceptance requirement,” section 241(b)(2)(C)(iii) of the Act contains an “acceptance exception” to removal, enabling the Secretary to disregard the designatio
n made by an alien when the government of the country chosen by the alien is not willing to accept the alien, thereby providing the Executive Branch with discretion to act in a manner consistent with its foreign policy. Accordingly, contrary to the commenters' assertion, the first step of the country-of-removal inquiry does not support the conclusion that acceptance is a legal requirement for removal.
Second, section 241(b)(2)(D) of the Act, the second step in the country-of-removal inquiry, also does not, as a legal matter, preclude removal without acceptance. In pertinent part, that provision states that the Secretary “shall remove” the alien to a country of which the alien is a subject, national, or citizen, “unless the government of the country * * * is not willing to accept the alien.” As with section 241(b)(2)(C), that provision does not bar removal without acceptance; it requires removal to any co
untry of which the alien is a subject, national, or citizen, but provides an exception when such a country fails to provide acceptance. Accordingly, section 241(b)(2)(D)(ii) of the Act also does not contain a legal impediment to removal; instead, like the language in section 241(b)(2)(C)(iii), it releases the Secretary from the mandatory language of “shall remove” and preserves the discretion of the Secretary of Homeland Security to act.
Finally, section 241(b)(2)(E) of the Act, the third step in the country-of-removal inquiry, does not support the commenters' position that acceptance by a country is a legal requirement to removal generally. Contrary to the commenters' assertions, neither the structure, history, nor title of section 241(b)(2)(E) of the Act supports the proposition that acceptance is a requirement. Section 241(b)(2)(E) of the Act states that the Secretary “shall remove” the alien to any of seven specified countries or catego
ries of countries. The first six of these are countries with some prior connection to the alien and are defined without any reference to acceptance, including, for example, “[t]he country in which the alien was born,” see section 241(b)(2)(E)(iv) of the Act. The final provision, on the other hand, states: “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 that count
ry,” see section 241(b)(2)(E)(vii) of the Act (emphasis added). It is in this last clause, and only in this last clause, that section 241(b)(2) of the Act contains what is appropriately labeled an “acceptance requirement.” Specifically, the wording of this last clause (“another country whose government will accept the alien into that country”) stands in stark contrast to any of the other so-called acceptance provisions discussed above. Additionally, the fact that the only reference to acceptance within sect
ion 241(b)(2)(E) of the Act is contained in clause (vii) and clearly absent from the other six clauses demonstrates that there is no general acceptance requirement within section 241(b)(2)(E) of the Act. See Cardozo-Fonseca, 480 U.S. at 432 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (“`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 disparat
e inclusion or exclusion.”'). Not only did Congress include and exclude reference to acceptance within the same statute, it did so within the same subparagraphs of section 241(b)(2)(E) of the Act. Accordingly, the language of section 241(b)(2)(E) of the Act only requires acceptance as a legal prerequisite to removal in clause (vii); it does not require acceptance as a legal prerequisite to removal in clauses (i)-(vi). Additionally, it should be noted that what constitutes acceptance for purposes of the Act
is a determination made by the Secretary of Homeland Security.
The commenters' contention that the history of section 241(b)(2)(E) of the Act supports a broad imposition of the acceptance requirement throughout clauses (i)-(vi) of section 241(b)(2)(E) of the Act, where no reference to acceptance exists, is also erroneous. Several commenters state that because sections 241(b)(2)(C)(iii), 241(b)(2)(D)(ii), and 241(b)(2)(E)(vii) of the Act require acceptance, and that because section 241(b)(2)(E) of the Act is an integral part of 241(b) of the Act, “only the most mechanic
al and contrived reading would assert that the requirement does not apply with equal force” to sections 241(b)(2)(E)(i)-(vi) of the Act. However, as already discussed above, sections 241(b)(2)(C)(iii) and (D)(ii) do not contain an “acceptance requirement,” but an “acceptance exception'; the only subsection within section 241(b)(2) of the Act that contains an acceptance requirement is 241(b)(2)(E)(vii) of the Act. There is nothing “contrived or mechanical” about reading an acceptance requirement only within
that subsection. In fact, far from being “contrived or mechanical,” it is what the statute mandates, since Congress included specific words within one subsection but excluded them within the others.
Certain commenters suggest that the undeniably progressive nature of the provisions set forth in section 241 of the Act provides an “indication” that acceptance is required within all subsections of section 241(b)(2)(E) because it would “twist the removal process” if acceptance would be required from a country with the closest connection to the alien, i.e., the country of which the alien is a subject, national, or citizen, but not from countries with more attenuated connections to the alien. The Secretary o
f Homeland Security and the Attorney General again reiterate that, contrary to the commenters' assertion, acceptance is not generally required within section 241(b)(2) of the Act. For the reasons already discussed, there is only one acceptance requirement within section 241(b)(2) of the Act, and it is found at section 241(b)(2)(E)(vii) of the Act. Accordingly, the progressive nature of section 241(b)(2) of the Act, in terms of providing steps for determining the country of removal, has no bearing on accepta
Some commenters also proposed that the heading of section 241(b)(2)(E) of the Act indicates that acceptance is required in all circumstances. Commenters state that the change of the heading from “other countries” to “additional removal countries” indicates congressional intent that the countries captured by section 241(b)(2)(E) of the Act be different from the previous countries. However, the title of the section--Additional Removal Countries--is not accurately described as imposing an acceptance requiremen
t not otherwise contained in the text of the provision. Commenters' statement correctly alludes to the proposition that the “title of a statute and the heading of a section” are “tools available for the resolution of doubt about the meaning of a statute.” Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998); but see INS v. St. Cyr, 533 U.S. 289, 308-309 (2001) (noting that “title alone is not controlling”); INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991). However, contr
ary to the commenters' proposition, the fact that headings can be “tools available for resolution of doubt” is not instructive in this case where there is no need to resolve any doubt. The change in the heading from “other” to “additional” cannot overcome the fact that clauses (i) through (vi) of section 241(b)(2)(E) of the Act do not contain any mention of acceptance. There is simply no doubt to resolve in this case.
Finally, some commenters also suggested that section 241(b)(2)(E) of the Act generally requires acceptance by all receiving countries because to find otherwise would lead to “unmanageable” and “absurd” results in that an alien could be removed to the “country from which the alien was admitted to the United States,” under section 241(b)(2)(E)(i) of the Act, without acceptance by the government of that country, even if the country was simply a border country through which the alien was traveling or the countr
y was simply host to a major airline. In this regard, these commenters stated that “[t]he statute did not grant unfettered discretion to the DHS to remove an alien when the agency deemed it possible to do so, and the agency does not have the power to read this authority into the statute.” In fact, the commenters are mistaken. Section 241(b)(2) of the Act simply provides a checklist of sorts outlining the countries to which an alien may be removed. Section 241(b)(2) of the Act, however, does not provide the
authority for DHS to remove an alien once that alien is ordered removed; the authority is “ `a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' “ Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex. rel. Mezei, 345 U.S. 206, 210 (1953)). Commenters are confusing two different concepts, i.e., whether particular action is appropriate, as opposed to whether particular action is authorized. There is a differe
nce between the legal authority to act and the discretion to act. The Secretary of Homeland Security is authorized to remove an alien pursuant to sections 241(b)(2)(E)(i)-(vi) of the Act, regardless of any acceptance by the government of the foreign country. Whether it is wise or practical to do so is simply a separate inquiry, not at all related to whether there is authority to do so. As stated in the Notice of Proposed Rulemaking, “the general practice of the Executive Branch is not to attempt to remove a
n individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. This general practice is based upon an acknowledgement that it is not generally practical to remove aliens to a country whose government refuses to accept him. However, the practice is based on considerations of foreign policy, nothing more.
Accordingly, the Secretary of Homeland Security and the Attorney General find it unnecessary to amend the proposed rules based on these comments.
Acceptance, Judicial Precedent, and Ratification by Congress
Several commenters suggest that there is historical precedent from both the federal courts and the Board of Immigration Appeals (the Board) requiring acceptance. These commenters suggest that Congress “ratified” this acceptance requirement in adopting the current version of section 241 of the Act, 8 U.S.C. 1231. Neither the decisions of the federal courts or the Board support the position that acceptance is a requirement under current section 241(b)(2) of the Act, nor has Congress ratified such interpretati
The federal court cases cited by some commenters do not support the proposition that these courts have interpreted the removal statute to require acceptance as a legal prerequisite. In fact, most of the cases cited have not specifically considered the issue of whether acceptance was a legal prerequisite. In United States ex rel. Hudak v. Uhl, 20 F.Supp. 928 (N.D.N.Y. 1937), for example, the court stated that “[i]t will be presumed in every case of deportation that the United States immigration authorities h
ave obtained the consent of the native sovereignty to receive the deported alien.” Id. at 930. There was no clear discussion by the court whether its “presumption” was based on a legal prerequisite in the removal provision versus the practical considerations regarding what would occur if an alien is taken to a foreign sovereign and that sovereign refuses to receive the alien. As such, Hudak cannot be said to support the commenters' proposition that acceptance is a legal prerequisite to removal. In Chi Sheng
Liu v. Holton, 297 F.2d 740 (9th Cir. 1962), the court noted that the appellant contended that the Act required acceptance before he could be deported. Id. at 743. The court then considered that a letter from the Consul General of the country was sufficient evidence of acceptance. Id. at 744. Because there was an indication of acceptance from the government of the proposed country of removal, there was no need for the court to consider the question of whether that acceptance was a legal prerequisite to rem
oval. Similarly, United States ex rel. Lee Ming Hon v. Shaughnessy, 142 F.Supp 468 (S.D.N.Y. 1956), is a two-paragraph decision, the focus of which is whether a particular document is sufficient proof that the government of the proposed country of removal provided acceptance. There is no discussion regarding whether acceptance is a legal requirement to removal, as opposed to a practical obstacle to removal. Accordingly, these cases do not stand for the proposition that acceptance is a legal requirement to r
emoval. The common thread among the cases involves the practical difficulties in removal where acceptance is lacking, a fact the Executive Branch acknowledged in its Notice of Proposed Rulemaking. See, e.g., 69 FR at 42904.
In United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959), the court did state “we think that deportation * * * is subject to the condition expressed in the seventh subdivision [the predecessor to section 241(b)(2)(E) of the Act]: i.e., that the `country' shall be `willing to accept' him `into its territory.' “ Id. at 928; see also Amanullah & Wahidullah v. Cobb, 862 F.2d 362 (1st Cir. 1988) (Pettine, J.) (relying on Tom Man for the proposition that acceptance is a requirement and noting that t
here was communication from the proposed country of removal that the aliens would not be accepted); Lee Wei Fang v. Kennedy, 317 F.2d 180 (D.C. Cir. 1963), cert. denied, 375 U.S. 833 (1963) (citing Tom Man for the proposition that acceptance is a requirement, yet not elaborating whether the requirement was legal or practical, and then focusing on what constituted a country). However, aside from the quoted statement itself, there is no elaboration by the court discussing the reason why it “thought” that depo
rtation was subject to acceptance. Tom Man, and the cases citing it, did not engage in full analysis of the question whether acceptance is a legal prerequisite to removal.
Similarly, the decisions of the Board cited by the commenters do not support their position that acceptance is a legal prerequisite to removal. In Matter of Anunciacion, 12 I&N Dec. 815 (BIA 1968), the Board stated that the question “whether or not a specified country will accept the alien as a deportee is one of comity concerning solely the United States and the country in question.” Id. at 817. Accordingly, Matter of Anunciacion cannot fairly be described as supporting the position that acceptance is a le
gal, as opposed to practical, prerequisite to removal. Additionally, commenters rely on Matter of Linnas, 19 I&N Dec. 302 (BIA 1985); however, reliance on this case is also misplaced. In Matter of Linnas, the main question before the Board was whether the offices of the Republic of Estonia in New York City constituted a country for purposes of removal and whether the alien could therefore be removed to those offices. The Board answered the question in the negative. Id. at 307. In determining whether the off
ices in New York City constituted a country, the Board cited Tom Man, as the case arose in that circuit, and found that the language of the removal section “expressly requires, or has been construed to require, that the `government' of a country selected under any of the three steps must indicate it is willing to accept a deported alien into its `territory.' “ Id. However, this statement by the Board was made in the context of deciding what constituted a country for purposes of removal, and the Board was re
lying on Tom Man, as circuit precedent, in making this statement. The Board did not address the fact that determining what constitutes a country for purposes of removal is one inquiry; the other inquiry being whether acceptance by the government of that country is a legal prerequisite to removal. Accordingly, Matter of Linnas is not instructive on whether acceptance is a legal prerequisite to removal because that issue was not before the Board.
It is with this background regarding the existing case law that some commenters assert that Congress has ratified an acceptance requirement into section 241(b)(2) of the Act. The commenters classify the cases as being “long-standing” and having a “consistent construction” of the predecessors to section 241(b)(2) of the Act. However, as already described, there is no consistent construction that acceptance is a legal prerequisite to removal under section 241(b)(2) of the Act, except for section 241(b)(2)(E)(
vii) of the Act, which does contain an acceptance requirement. Accordingly, there was no arguable settled precedent for Congress to ratify.
Accordingly, the commenters are incorrect in their assertion that Congress has ratified an acceptance requirement into the entirety of section 241(b)(2) of the Act, even where the text of the section is clear that no such acceptance is legally required. Therefore, the Secretary and the Attorney General are adopting the proposed rules in this area unchanged.
Lack of General Acceptance Requirement and Effect on Other Provisions of the Act
Some commenters suggest that the proposed rules would render parts of section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), superfluous because the rule allows the Department of Homeland Security to remove an alien under section 241(a)(2)(E)(i)-(vi) of the Act to a country which, for example, would be prohibited under section 241(b)(2)(D) of the Act. The commenters' characterization is incorrect as there is no general “prohibition” on removal within section 241(b)(2) of the Act. As discussed at length above, t
he acceptance provisions within section 241(b)(2) of the Act do not prohibit removal; they simply release the Secretary from the requirement to take action under certain circumstances. The authority to choose not to effectuate a removal under certain circumstances, i.e., the discretion granted to the Secretary, cannot accurately be labeled a “prohibition” as these commenters suggest. Accordingly, parts of section 241(b)(2) of the Act are not rendered superfluous.
Likewise, the claim by certain commenters that section 241(a)(7)(A) of the Act, 8 U.S.C. 1231(a)(7)(A), would be rendered superfluous under these rules is incorrect. In the words of the commenters, “[i]f a receiving country's refusal to accept a deportee could so easily be overridden, this provision, too, effectively would be useless.” There is nothing “useless” or superfluous about this section. Section 241(a)(7)(A) of the Act provides that an alien ordered removed is not eligible for employment authorizat
ion unless the Secretary of Homeland Security makes a “specific finding that the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien.” If the Secretary makes a “specific finding” that the alien cannot be removed as a practical matter because of lack of acceptance, an alien may obtain employment authorization as appropriate. That is all the section provides, and it does so even though the Secretary is legally authorized to remove alie
ns under section 241(b)(2) of the Act, except for section 241(b)(2)(E)(vii) of the Act, without the proposed removal country's acceptance. Therefore, this section is not rendered superfluous because it continues to operate notwithstanding these rules.
Some commenters cite to the provisions relating to removal of alien terrorists in section 507(b)(2)(C) of the Act, 8 U.S.C. 1537(b)(2)(C), in the section where they are addressing superfluous provisions, yet they appear to be arguing that section 507(b)(2)(C) of the Act somehow instructs the reading of section 241(b)(2) of the Act without any further elaboration. It is unclear whether commenters are arguing that the alien terrorist removal provisions would be rendered superfluous, or whether the alien terro
rist provisions mandate that an acceptance requirement be read into section 241(b)(2) of the Act where none is specifically contained. In any event, either proposition is incorrect. Congress specifically enacted separate provisions to be invoked as appropriate in dealing with alien terrorists. These provisions, detailed in sections 501 through 507 of the Act, include the establishment of a special removal court to handle alien terrorist cases, and create a framework for handling those cases. Accordingly, th
e provisions relating to removal of alien terrorists contained in sections 501 through 507 of the Act, 8 U.S.C. 1531-1537, are independent of the other provisions dealing with non-terrorist aliens and are not instructive regarding the general removal provisions and certainly do not in any way support the contention that section 241(b)(2) of the Act legally requires acceptance by the proposed country of removal before removal can be effectuated, except as otherwise provided by Congress in section 241(b)(2)(E
)(vii) of the Act.
Some commenters also seem to suggest that section 243(d) of the Act, 8 U.S.C. 1253(d), which permits the Secretary of State to discontinue the issuance of visas to citizens, subjects, nationals, and residents of a country if the government of that country refuses to accept their return, is rendered superfluous. This is incorrect, as nothing in these rules affects the Secretary of State's legal authority to discontinue the issuance of visas for individuals of certain countries if those countries do not affir
matively accept their citizens, subjects, nationals, or residents when asked to do so by the United States. The Secretary of State may continue to take such action as he or she deems appropriate under this section notwithstanding the interpretations in these rules. Section 243(d) of the Act simply provides a potential consequence when a foreign government refuses to accept its nationals, citizens, etc. The fact that the Secretary of Homeland Security may choose to remove an alien to a foreign country withou
t acceptance by the government of that country because the Secretary has determined that it is in the foreign policy interests of the United States does not negate the import of section 243(d) in authorizing the Secretary of State to take appropriate action against that country by discontinuing issuance of visas. What sometimes cannot be obtained through diplomacy in terms of obtaining the consent of the government of a foreign country to accept its nationals may sometimes be obtained when some adverse cons
equence attaches to the actions of the government of the foreign country. As a result, the Secretary of Homeland Security rejects the commenters' claim that the proposed regulations render portions of the Act superfluous.