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 MJP ALBERTO 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Opinion Withdrawn and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
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 country 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 & Customs Enforcement, 125 S. Ct. 694 (2005). Jama thus has foreclosed 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 respondent in a habeas proceeding, in which Padilla challenged his

detention as an enemy combatant, was the warden of the facility 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. 

11592 ALI v. GONZALES
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 certification, rather than vacating that order, we reject the government’s request to vacate the order of release.2

The government’s petition for panel rehearing and rehearing 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 dockets 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. 

ALI v. GONZALES 11593
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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