ASHINGTON,
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.