JUSTICE SCALIA delivered the opinion of the Court.
When an alien is found ineligible to remain in the United States, the process for selecting the country to which he will be removed is prescribed by 8 U. S. C. § 1231(b)(2). The question in this case is whether this provision prohibits removing an alien to a country without the explicit, advance consent of that country's government.
Petitioner Keyse Jama was born in Somalia and remains a citizen of that nation. He was admitted to the United States as a refugee, but his refugee status was terminated in 2000 by reason of a criminal conviction. See Jama v. INS, 329 F.3d 630, 631 (CA8 2003). The Immigration and Naturalization Service (INS) brought an action to remove petitioner from the United States for having committed a crime involving moral turpitude. Ibid.; see 8 U. S. C. §§ 1182(a) (2)(A)(i)(I), 1229a(e)(2)(A). In the administrative hearing, petitioner conceded that he was subject to removal, although he sought various forms of relief from that determination (adjustment of status, withholding of removal, and asylum relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment). He declined to designate a country to which he preferred to be removed. The Immigration Judge ordered petitioner removed to Somalia, his country of birth
Instead, petitioner instituted collateral proceedings under the habeas statute, 28 U. S. C. § 2241, to challenge the designation of Somalia as his destination. He filed his petition in the United States District Court for the District of Minnesota, alleging that Somalia has no functioning government, that Somalia therefore could not consent in advance to his removal, and that the Government was barred from removing him to Somalia absent such advance consent. The District Court agreed that petitioner could not be removed to a country that had not consented in advance to receive him, Jama v. INS, Civ. File No. 01-1172 (JRT/AJB) (Mar. 31, 2002), p. 10, App. to Pet. for Cert. 51a, but a divided panel of the Court of Appeals for the Eighth Circuit reversed, holding that § 1231(b)(2) does not require acceptance by the destination country. 329 F. 3d, at 633-635. We granted certiorari. 540 U.S. 1176 (2004).
Title 8 U. S. C. § 1231(b)(2), which sets out the procedure by which the Attorney General
The statute thus provides four consecutive removal commands: (1) An alien shall be removed to the country of his choice (subparagraphs (A) to (C)), unless one of the conditions eliminating that command is satisfied; (2) otherwise he shall be removed to the country of which he is a citizen (subparagraph (D)), unless one of the conditions eliminating that command is satisfied; (3) otherwise he shall be removed to one of the countries with which he has a lesser connection (clauses (i) to (vi) of subparagraph (E)); or (4) if that is "impracticable, inadvisable or impossible," he shall be removed to "another country whose government will accept the alien into that country" (clause (vii) of subparagraph (E)). Petitioner declined to designate a country of choice, so the first step was inapplicable. Petitioner is a citizen of Somalia, which has not informed the Attorney General of its willingness to receive him (clause (i) of subparagraph (D)), so the Attorney General was not obliged to remove petitioner to Somalia under the second step. The question is whether the Attorney General was precluded from removing petitioner to Somalia under the third step (clause (iv) of subparagraph (E)) because Somalia had not given its consent.
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. In all of subparagraph (E), an acceptance requirement appears only in the terminal clause (vii), a clause that the Attorney General may invoke only after he finds that the removal options presented in the
Effects are attached to nonacceptance throughout the rest of paragraph (2), making the failure to specify any such effect in most of subparagraph (E) conspicuous—and more likely intentional. Subparagraph (C) prescribes the consequence of nonacceptance in the first step of the selection process; subparagraph (D) does the same for the second step; and clause (vii) of subparagraph (E) does the same for the fourth step.
Petitioner seizes upon the word "another" in clause (vii) as a means of importing the acceptance requirement into clauses (i) through (vi). He argues that if the last resort country is "another country whose government will accept the alien," then the countries enumerated in clauses (i) through (vi) must also be "countries whose governments will accept the alien." That stretches the modifier too far.
Petitioner contends that even if no acceptance requirement is explicit in the text, one is manifest in the entire structure of § 1231(b)(2). The Attorney General may not remove an alien to a country under subparagraph (A) or (D) without that country's consent, petitioner reasons, so he must be barred from circumventing that limitation by removing the same alien to the same country under subparagraph (E). The dissent rests its argument only on the existence of an acceptance requirement in step two (subparagraph (D)) and not in step one (subparagraphs (A) through (C)).
The more fundamental defect in petitioner's argument, which appeals to a presumed uniformity of acceptance requirement throughout § 1231(b)(2), is that its premise is false. It is simply not true that the Attorney General may not remove an alien to a country under subparagraph (A) or (D) without that country's consent. Subparagraph (C) specifies that the Attorney General "may disregard" the alien's subparagraph (A) designation if the designated country's government proves unwilling to accept the alien or fails to respond within 30 days. The word "may" customarily connotes discretion. See, e. g., Haig v. Agee, 453 U.S. 280, 294, n. 26 (1981). That connotation is particularly apt where, as here, "may" is used in contraposition to the word "shall": The Attorney General "shall remove" an alien to the designated country, except that the Attorney General "may" disregard the designation if any one of four potentially countervailing circumstances arises. And examining those four circumstances reinforces the inappropriateness of reading "may" to mean "shall" in subparagraph (C): Would Congress really have wanted to preclude the Attorney General from removing an alien to his country of choice, merely because that country took 31 days rather than 30 to manifest its acceptance?
Nor does the existence of an acceptance requirement at the fourth and final step create any structural inference that such a requirement must exist at the third. It would be a stretch to conclude that merely because Congress expressly directed the Attorney General to obtain consent when removing an alien to a country with which the alien lacks the ties of citizenship, nativity, previous presence, and so on, Congress must also have implicitly required him to obtain advance acceptance from countries with which the alien does have such ties. Moreover, if the Attorney General is unable to secure an alien's removal at the third step, all that is left is the last-resort provision allowing removal to a country with which the alien has little or no connection—if a country can be found that will take him. If none exists, the alien is left in the same removable-but-unremovable limbo as the aliens in Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, post, p. 371, and under the rule announced in those cases must presumptively be released into American
To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the President in matters of foreign affairs. Removal decisions, including the selection of a removed alien's destination, "may implicate our relations with foreign powers" and require consideration of "changing political and economic circumstances." Mathews v. Diaz, 426 U.S. 67, 81 (1976). Congress has already provided a way for the Attorney General to avoid removals that are likely to ruffle diplomatic feathers, or simply to prove futile. At each step in the selection process, he is empowered to skip over a country that resists accepting the alien, or a country that has declined to provide assurances that its border guards will allow the alien entry.
Nor is it necessary to infer an acceptance requirement in order to ensure that the Attorney General will give appropriate consideration to conditions in the country of removal. If aliens would face persecution or other mistreatment in the country designated under § 1231(b)(2), they have a number of available remedies: asylum, § 1158(b)(1); withholding of removal, § 1231(b)(3)(A); relief under an international agreement prohibiting torture, see 8 CFR §§ 208.16(c)(4), 208.17(a) (2004); and temporary protected status, 8 U. S. C. § 1254a(a)(1). These individualized determinations strike a better balance between securing the removal of inadmissible aliens and ensuring their humane treatment than does petitioner's suggestion that silence from Mogadishu inevitably portends future mistreatment and justifies declining to remove anyone to Somalia.
Petitioner points to what he describes as the "settled construction" of § 1231(b)(2), and asserts that Congress, in its most recent reenactment of the provision, should be deemed to have incorporated that construction into law. We think not. Neither of the two requirements for congressional ratification is met here: Congress did not simply reenact § 1231(b)(2) without change, nor was the supposed judicial consensus so broad and unquestioned that we must presume Congress knew of and endorsed it.
Removal is a new procedure created in 1996 through the fusion of two previously distinct expulsion proceedings, "deportation" and "exclusion." IIRIRA, § 304(a)(3), 110 Stat. 3009-589, 8 U. S. C. § 1229a. Our immigration laws historically distinguished between aliens who have "entered" the United States and aliens still seeking to enter (whether or not they are physically on American soil). See Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). "The distinction was carefully preserved in Title II" of the Immigration and Nationality Act (INA): expelling an alien who had already entered required a deportation proceeding, whereas expelling an alien still seeking admission could be achieved through the more summary exclusion proceeding. Ibid.; see Landon v. Plasencia, 459 U.S. 21, 25-27 (1982) (cataloging differences between the two proceedings). Aliens who, like petitioner, were allowed into the United States as refugees were subject to exclusion proceedings rather than deportation proceedings when their refugee status was revoked. 8 CFR § 207.8 (1995).
In other words, IIRIRA forged the new removal procedure out of two provisions, only one of which had been construed as petitioner wishes.
* * *
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SOUTER, joined by JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER, dissenting.
Title 8 U. S. C. § 1231(b) prescribes possible destinations for aliens removable from the United States. Paragraph (1) of that subsection governs aliens found excludable from the United States in the first place, whereas paragraph (2), which is at issue in this case, governs those once admitted for residence but since ordered to be deported (for criminal conduct while here, for example).
The provision for step three describes six countries with various connections to an alien ("[t]he country in which the alien was born," for example, § 1231(b)(2)(E)(iv)), as well as the choice of last resort, "another country whose government will accept the alien into that country," § 1231(b)(2)(E)(vii). The question is whether not only the seventh, last-resort country but also the prior six are subject to the condition
The Court remarks that "[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply." Ante, at 341. Indeed we do not, but the question in this case is whether Congress really has left out an acceptance requirement covering the entire "adopted text," that is, the provision governing all seven choices at step three. Jama says that the text contains just that requirement, in the seventh and final clause of § 1231(b)(2)(E). As noted, that clause provides a last possible destination for aliens who cannot (or, in the Government's view, should not) be removed under subparagraphs (A) through (D) or the first six clauses of subparagraph (E); it does so by authorizing removal to "another country whose government will accept the alien," § 1231(b)(2)(E)(vii).
Jama contends that the description of "another" willing country applies an acceptance requirement to clauses (i) through (vi) of the same subparagraph, (E). If Congress had not intended this, it would have written clause (vii) differently, as by saying, for example, "a country whose government will accept the alien" or "any country whose government will accept the alien" or "another country, if that country will accept the alien." Congress, in other words, had some simple drafting alternatives that would not have indicated any intent to attach an acceptance requirement to clauses (i) through (vi), but instead used language naturally read as alluding to a common characteristic of all the countries in the series, a willingness to take the alien. Jama would therefore have us draw the straightforward conclusion that all step-three designations are subject to acceptance by the country selected, just as we have reasoned before when
The Court dodges the thrust of the congressional language by invoking the last antecedent rule as a grammatical reason for confining the requirement of a receiving country's willingness strictly to the seventh third-step option, where it is expressly set out. Under the last antecedent rule, "a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26 (2003), quoted ante, at 343. If the rule applied here, it would mean that the phrase "whose government will accept . . ." modified only the last choice "country" in clause (vii), to the exclusion of each "country" mentioned in the immediately preceding six clauses, notwithstanding the apparently connecting modifier, "another."
But the last antecedent rule fails to confine the willing-government reference to clause (vii). The rule governs interpretation only "ordinarily," and it "can assuredly be overcome by other indicia of meaning. . . ." Barnhart, supra, at 26. Over the years, such indicia have counseled us against invoking the rule (often unanimously) at least as many times as we have relied on it. See Nobelman v. American
The first of these indicia is the contrast between the text of clause (vii), which is the last resort for "deportation," and the wording of the corresponding provision in the adjacent and cognate paragraph of the same subsection that deals with "exclusion." As the Court explains, ante, at 349, the 1996 amendments addressing removal of aliens gathered into one statute prior provisions dealing with the two different varieties of removal: what the earlier law called exclusion, that is, the removal of an excludable alien "with respect to whom [removal] proceedings . . . were initiated at the time of such alien's arrival," § 1231(b)(1), and what the earlier law called deportation, that is, the removal of all other aliens. Exclusion is the sole subject of paragraph (1) of the current statute, while deportation is the sole subject of paragraph (2), the one at issue here. See supra, at 352.
The separate attention to the two classes of removable aliens includes separate provisions for selecting the country to which an alien may be removed. Paragraph (1) sets out several options for excludable aliens, much as paragraph (2) does for those who are deportable. And just like the final clause of the final subparagraph of paragraph (2) (clause (vii)), the final clause of the final subparagraph of paragraph (1) provides a last resort that is available when removal of an excludable alien to any of the previously described countries "is impracticable, inadvisable, or impossible." § 1231(b)(1)(C)(iv). The two last-resort provisions differ in one important way, however. The provision for deportable aliens in paragraph (2) speaks of "another country whose government will accept the alien into that country," § 1231(b)(2)(E)(vii), while the one for excludable aliens in
Although this textual difference between simultaneously enacted provisions that address the same subject makes no sense unless Congress meant different things by its different usage, the Court treats the "a country" and "another country" provisions as if they were exactly the same. In doing so, it "runs afoul of the usual rule that `when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.'" Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed. 2000)); accord, United States v. Gonzales, 520 U.S. 1, 5 (1997) ("`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 disparate inclusion or exclusion'"); Russello v. United States, 464 U.S. 16, 23 (1983) ("We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship"). Jama's contrasting interpretation, which I would adopt, is consistent with Congress's distinct choices of words.
The Court cannot be right in reducing the 1996 amendment to this level of whimsy. And if there were any doubt about what Congress was getting at when it changed "any country" to "another country," legislative history and prior case law combine to show what Congress had in mind. At least one House of Congress intended various 1996 amendments (including "any country" to "another country") to make no substantive change in the law. H. R. Conf. Rep. No. 104-828, p. 216 (1996); H. R. Rep. No. 104-469, pt 1, p. 234 (1995) (Judiciary Committee Report) (both describing the relevant section as merely "restat[ing]" the earlier provision). Accordingly, the change from "any" to "another" makes most sense as a way to bring the text more obviously into line with an understanding on the part of Congress that
This is also the understanding that fits with what we know about the view of the law outside of Congress. In an early decision by Judge Learned Hand, the Second Circuit squarely held that the pre-1996 designations of receiving countries were all subject to the country's acceptance. United States ex rel. Tom Man v. Murff, 264 F.2d 926 (CA2 1959). Other Circuit opinions took the same position in dicta. E. g., Amanullah v. Cobb, 862 F.2d 362, 365-366 (CA1 1988) (opinion of Pettine, J.); id., at 369 (Aldrich, J., concurring) (both citing Tom Man, supra); Chi Sheng Liu v. Holton, 297 F.2d 740, 743 (CA9 1961) (citing Tom Man and describing the predecessor to § 1231(b)(2) as "provid[ing] that an alien cannot be deported to any country unless its government is willing to accept him into its territory" (internal quotation marks omitted)). Nor was the consensus confined to the courts, for the Board of Immigration Appeals read the predecessor to subparagraphs (E)(i)-(vi) as having an acceptance requirement. Matter of Linnas, 19 I. & N. Dec. 302, 307 (1985) ("[T]he language of that 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'"); but cf. Matter of Niesel, 10 I. & N. Dec. 57, 59 (BIA 1962).
The Government, like today's Court, is fighting uphill when it tries to show that these authorities failed to express the consensus view of the law at the time Congress rearranged the statutes, and neither Government nor Court cites a single judicial ruling, prior to the Eighth Circuit's decision here, that held or stated in dicta or even implied that the acceptance requirement did not apply throughout the third step. The District Court in this case, echoing the Magistrate Judge, stressed this very point, saying that "in fifty pages of briefing, the government has not cited a single case in which a federal court has sanctioned the removal of a legally admitted alien to a country that has not agreed to accept him." App. to Pet. for Cert. 52a (emphasis and internal quotation marks omitted).
The Court's attempt to undercut this evidence founders on a mistake of fact. The Court describes the 1996 amendment as creating the current removal scheme "through the fusion of two previously distinct expulsion proceedings, `deportation' and `exclusion.'" Ante, at 349. According to the Court, this fusion neutralizes Jama's contention that the settled understanding of the prior law, expressed in consistent judicial treatment, was meant to be carried forward into subparagraphs (E)(i)-(vi). Because the current statute was "forged . . . out of two provisions [one on exclusion and one on deportation], only one of which [on deportation] had been construed as petitioner wishes," ante, at 351, the Court says it is unsound to argue that Congress meant to preserve an acceptance requirement when the statute merged the old exclusion and deportation laws.
The Court goes wrong here, and we have already seen how. It is true that the 1996 law uses the word "removal" to cover both exclusion and deportation, e. g., Calcano-Martinez v. INS, 533 U.S. 348, 350, n. 1 (2001), and places the former exclusion and deportation provisions in a single section (indeed, a single subsection) of the U. S. Code. The statutory provision now before us, however, in no way resulted from a textual merger of two former provisions. As noted, the language of the prior exclusion provision appears (with very few changes from its predecessor) in one paragraph, compare § 1231(b)(1)
The Court responds that § 1231(b)(2) must descend from the prior exclusion provision because the old exclusion provision would have been used to send an alien in Jama's situation out of the country, whereas now § 1231(b)(2) is used. Ante, at 351, n. 11. But this is beside the point. The issue before us concerns the process (laid out in § 1231(b)(2)) by which certain aliens are sent out of the country. We are considering what that process requires. The Court's observation, by contrast, involves the separate issue of who is covered by that process. Put simply, whether or not changes to other sections of the Act or to the implementing regulations enlarged the class of aliens subject to the process is irrelevant to the question of what the process is, that is, the question of what § 1231(b)(2) provides.
In sum, we are considering text derived from earlier law understood to require a receiving country's acceptance of any alien deported to it at step three. The only significant textual change helps to express that understanding of the law's requirements, and two House Reports stated that the amending legislation was not meant to change substantive law. Text, statutory history, and legislative history support reading the clause (vii) language, "another country whose government will accept the alien," as providing that any "country" mentioned in the six preceding clauses, (i) through (vi), must also be willing to accept the alien before deportation thence may be ordered.
I mentioned how reference to § 1231(b)(1), governing exclusion, illuminates the choice to speak of "another country" in § 1231(b)(2). A different cross-reference within the statute confirms the reading that all step-three choices are subject to an acceptance requirement. Jama argues that subparagraph (D), laying out step two, contains an acceptance
Subparagraph (D) provides that if an alien is not removed to the country designated at step one, the Secretary "shall [at step two] remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country" is unwilling to accept the alien or fails to inform the Secretary within a certain time that it is willing. § 1231(b)(2)(D). On the Court's reading of subparagraph (E), however, anytime an alien's country of citizenship (the designee at step two) is the same as his country of birth (a possible designee at step three, under subparagraph (E)(iv)), the country's refusal to accept the alien, precluding removal at step two, will be made irrelevant as the Government goes to step three and removes to that country under subparagraph (E)(iv). This route to circumvention will likewise be open to the Government whenever, as will almost always be the case, an alien's country of citizenship is also described in one of the other clauses of subparagraph (E). If an alien, for example, resided in his country of citizenship at any time prior to his arrival in the United States (as is undoubtedly true in virtually every case), the Government could get around the acceptance requirement of subparagraph (D) by removing him at step three: under clause (i) if he came directly from his country of citizenship or clause (iii) if he came by way of another country or countries.
But the acceptance provision governing subparagraph (A) (step one) is beside the point. Jama's argument rests not on some common feature of "subparagraph[s] (A) [and] (D)," ante, at 346, but on the text of subparagraph (D), that is, on step two alone. He argues that the Government's power under that step is subject to an acceptance requirement, which the Government's reading would allow it to skirt.
The Government at least joins issue with Jama, when it claims step two has no acceptance requirement to evade.
The first is the textual contrast between steps one and two. As noted, subparagraph (C) can be read to give the Government express permission to ignore at step one a country's refusal to accept an alien: "The [Secretary] may disregard [an alien's] designation [of a country] if . . . the government of the country is not willing to accept the alien . . . ." § 1231(b)(2)(C). No such express grant of discretion appears in subparagraph (D), which provides that at step two, "the [Secretary] shall remove the alien to a country of [citizenship] unless the government of the country . . . is not willing to accept the alien. . . ." § 1231(b)(2)(D). The first of these ostensibly gives authority supplemented with discretion in the event that the acceptance condition is not satisfied; the second gives authority only if the acceptance condition is satisfied. The discretionary sounding language governing step one tends to show that Congress knew how to preserve the discretion to act in disregard of a country's non-acceptance; since it omitted any such provision suggesting discretion just a few lines later in subparagraph (D), the better inference is that Congress had no intent to allow the Government to ignore at step two a failure to accept by an alien's country of citizenship.
The second reason to reject the Government's position follows from the text of the predecessor statute, which clearly provided that when acceptance was not forthcoming at step two, the Government had to move on to step three. The relevant language of the prior version (a version that consisted of one paragraph instead of the current five subparagraphs) read:
Under this statute, the Government obviously lacked the discretion it now claims, of removing an alien at step two without the consent of the country of citizenship. This is significant for our purposes because, as already mentioned, two House Reports on the bill that transformed the old law into the new one indicate that no substantive changes were intended.
In sum, subparagraph (D) provides no authority to remove at step two without the consent of the country of citizenship. Jama is consequently correct that unless all of the options at step three are read as being subject to the same consent requirement, the requirement at step two will be nullified.
At the last ditch, the Court asserts that Jama's position would "abridge th[e] exercise of Executive judgment," ante, at 344, and "run counter to our customary policy of deference to the President in matters of foreign affairs," ante, at 348. The Government similarly contends (throughout its brief) that Jama's approach would improperly limit the discretion of the Executive Branch. E. g., Brief for Respondent 13 ("[C]onstruing Section 1231(b)(2)(E)(i)-(vi) not to require acceptance preserves the traditional authority of the Executive Branch to make case-by-case judgments in matters involving foreign relations"). But here Congress itself has significantly limited Executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens. This of course is entirely appropriate, since it is to Congress that the Constitution gives authority over aliens. Art. I, § 8, cl. 4; see also, e.g., INS v. Chadha, 462 U.S. 919, 940 (1983) ("The plenary authority of Congress over aliens under Art. I, § 8, cl. 4, is not open to question"). Talk of judicial deference to the Executive in matters of foreign affairs, then, obscures the nature of our task here, which is to say not how much discretion we think the Executive ought to have, but how much discretion Congress has chosen to give it.
* * *
I would reverse the judgment of the Court of Appeals.
APPENDIX TO OPINION OF SOUTER, J.
Paragraph (1) of 8 U. S. C. § 1231(b) reads as follows:
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance.
The dissent also finds profound meaning in the fact that Congress changed the text from "any country" in the 1996 legislation to "another country" in the current version. "The Court cannot be right," it says, "in reducing the 1996 amendment to this level of whimsy." Post, at 358. But if one lays the pre-1996 version of the statute beside the current version, he will find numerous changes that are attributable to nothing more than stylistic preference. To take merely one example: Clause (E)(ii) of the current law, which reads "The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States," previously read "the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory." 8 U.S.C. § 1253(a)(2) (1994 ed.). The dissent must explain why these changes were insignificant whereas the change from "any country" to "another country" was a momentous limitation upon executive authority.
The dissent repeatedly contends that Congress intended to make no substantive change to the prior law when it enacted § 1231(b)(2). E. g., post, at 361-362. But on the dissent's view the 1996 amendment worked rather a large change: Refugees like petitioner, who previously could be expelled without acceptance (under former § 1227), now cannot. See n. 8, supra.
The Court's response that "[s]tep one, which is indisputably set out in three subparagraphs, belies the dissent's theory that steps must precisely parallel subparagraphs," ante, at 342, n. 2 (emphasis omitted), misses the mark because that is not in fact my contention.
Here again, as with the Court's four-step interpretation of the statute, see supra, at 353, n. 2, not even the Government can subscribe to the Court's view, instead acknowledging forthrightly that in all or almost all cases, the alien's country of nationality will also be described in one of the clauses of subparagraph (E). Tr. of Oral Arg. 47 ("[T]he state of nationality is . . . always or virtually always going to be covered [in subparagraph (E)] because [the clauses of that subparagraph] include country of birth, country from which the alien departed to enter the United States, country in which he previously resided, country . . . that exercises sovereignty over the country in which he was born").
The Court responds by pointing to the heading for a different section of Jama's brief and to isolated statements that appear in still other sections. Ante, at 345, n. 6. But the most the Court could say based on these references is that Jama advances alternative challenges: first that acceptance is required at every step (in which case it should be required in subparagraphs (E)(i)-(vi)) and second that acceptance is at least required at step two, in which case the Government's interpretation allows the step-two acceptance requirement to be circumvented. Parties making alternative arguments do not forfeit either one, yet the Court ignores Jama's second argument.
Notably, the Court embraces precisely the opposite reasoning elsewhere in its opinion, stating that the discretion given to the Secretary in subparagraph (E)(vii) "accords with the similar flexibility to pass over inappropriate countries that the statute gives the [Secretary] at the other steps. . . ." Ante, at 344. Why the Court is willing to find an implied grant of flexibility in subparagraph (D) even though "Congress has shown elsewhere in the same statute that it knows how to make such a [grant] manifest," ante, at 341, is something of a mystery.