United States v. 2005-08-26 | 03-35096 | ALI VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 YUSUF ALI ALI; MOHAMED AWEYS;
MOHAMED HUSSEIN HUNDIYE; GAMA
KALIF MOHAMUD,
Petitioners-Appellees, No. 03-35096
v. D.C. No.
 02-2304 MJPALBERTO R. GONZALES,* Attorney
General; IMMIGRATION AND ORDER
NATURALIZATION SERVICE; ROBERT
S. COLEMAN, JR.,
Respondents-Appellants. 
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
July 8, 2003—Seattle, Washington
Opinion Filed September 17, 2003
Opinion Withdrawn and
Order Filed August 26, 2005
Before: Thomas M. Reavley,** A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Order;
Concurrence by Judge Reavley
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States. Fed. R. App. P. 43(c)(2).
**The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
11591

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COUNSEL
Greg D. Mack, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondents-appellants.
Nicholas P. Gellert, Perkins Coie LLP, Seattle, Washington,
for the petitioners-appellees.
ORDER
In Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), we held
that the United States cannot remove aliens to Somalia
because 8 U.S.C. § 1231 does not permit removal if the coun-
try does not have a functioning government to accept the
aliens. Id. at 876. We also held that the Attorney General was
the proper respondent in the habeas petition because of his
unique role as the interpreter of the statute and the “ultimate
decision-maker” in attempting to remove the Somalians
despite the lack of a functioning government to accept them.
Id. at 888.
The Supreme Court subsequently held that Somalia’s
inability to accept a person does not preclude the alien’s
removal from the United States. Jama v. Immigration & Cus-
toms Enforcement, 125 S. Ct. 694 (2005). Jama thus has fore-
closed the claim that the government may not remove aliens
to Somalia. Furthermore, in Rumsfeld v. Padilla, 124 S. Ct.
2711 (2004), the Supreme Court held that the proper respon-
dent in a habeas proceeding, in which Padilla challenged his
detention as an enemy combatant, was the warden of the facil-
ity where Padilla was being held, not the Secretary of
Defense. Id. at 2718, 2721-22. In Padilla, however, the Court
explicitly declined to resolve the question of “whether the
Attorney General is a proper respondent to a habeas petition
filed by an alien detained pending deportation.” Id. at 2718
n.8.
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The government has filed a petition for panel rehearing and
rehearing en banc. Subsequently, it also filed a motion to
vacate the panel’s decision and remand to the district court.
In the motion, the government “request[s] that the Court
vacate the panel’s September 17, 2003 decision and remand
this case to the district court with instructions to vacate the
existing injunction, de-certify the class, and vacate the order
of release regarding the Petitioners-Appellees Yusuf Ali Ali,
Mohamed Aweys, and Mohamed Hussein Hundiye.”
We grant the motion in part, and withdraw our opinion of
September 17, 2003, reported at 346 F.3d 873, and remand
this case to the district court with instructions to vacate the
injunction and to reconsider the class certification in light of
the Supreme Court’s decision in Padilla.1 Because we are
remanding for the district court to reconsider the class certifi-
cation, rather than vacating that order, we reject the govern-
ment’s request to vacate the order of release.2
The government’s petition for panel rehearing and rehear-
ing en banc of the opinion filed September 17, 2003, is denied
as moot.
REMANDED with directions.
1The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, which
requires the district court to transfer to the court of appeals habeas cases
challenging a final order of removal, deportation, or exclusion, does not
apply to this case because petitioners do not challenge or seek review of
any removal order.
2We note that, despite the government’s assurances to the contrary, it
has not been successful in removing Mr. Jama, and, based upon the dock-
ets of the United States Court of Appeals for the Eighth Circuit and the
United States District Court for the District of Minnesota, it appears that
Mr. Jama has been released from custody.
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REAVLEY, Circuit Judge, Specially Concurring in Part:
Because there is no longer a claim on behalf of the class,
I would vacate the certification and dismiss the case unless
the petitioners have individual claims to bring to the attention
of the district court. In that event, the proper respondent could
be resolved.
11594 ALI v. GONZALES

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