OCTOBER TERM, 2000
Syllabus
ZADVYDAS
v. DAVIS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No.99-7791. Argued February 21, 200l-Decided June 28, 2001*
After a final removal order is entered, an alien ordered removed
is held in custody during a 90-day removal period. If the alien is
not removed in those 90 days, the post-removal-period detention
statute authorizes further detention or supervised release, subject
to administrative review. Kestutis Zadvydas, petitioner in No.
99-7791-a resident alien born, apparently of Lithuanian parents, in
a German displaced persons camp-was ordered deported based on his
criminal record. Germany and Lithuania refused to accept him
because he was not a citizen of their countries; efforts to send
him to his wife's native country also failed. When he remained in
custody after the removal period expired, he filed a habeas action
under 28 U. S. C. § 2241. The District Court granted the writ,
reasoning that, because the Government would never remove him, his
confinement would be permanent, in violation of the Constitution.
In reversing, the Fifth Circuit concluded that Zadvydas' detention
did not violate the Constitution because eventual deportation was
not impossible, good-faith efforts to remove him continued, and his
detention was subject to administrative review. Kim Ho Ma,
respondent in No. 00-38, is a resident alien born in Cambodia who
was ordered removed based on his aggravated felony conviction. When
he remained in custody after the removal period expired, he filed a
§ 2241 habeas petition. In ordering his release, the District Court
held that the Constitution forbids post-removal-period detention
unless there is a realistic chance that an alien will be removed,
and that no such chance existed here because Cambodia has no
repatriation treaty with the United States. The Ninth Circuit
affirmed, concluding that detention was not authorized for more
than a reasonable time beyond the 90-day period, and that, given
the lack of a repatriation agreement, that time had expired.
Held:
1. Section 2241 habeas proceedings are available as a forum for
statutory and constitutional challenges to post-removal-period
detention. Statutory changes in the immigration law left habeas
untouched as the
*Together with No. 00-38,
Ashcroft, Attorney General, et
al. v.
Kim Ho Ma, on certiorari to the United States
Court of Appeals for the Ninth Circuit.
679
basic method for obtaining review of continued custody after a
deportation order becomes final, and none of the statutory
provisions limiting judicial review of removal decisions applies
here. Pp. 687-688.
2. The post-removal-period detention statute, read in light of
the Constitution's demands, implicitly limits an alien's detention
to a period reasonably necessary to bring about that alien's
removal from the United States, and does not permit indefinite
detention. Pp. 688-699.
(a) A statute permitting indefinite detention would raise
serious constitutional questions. Freedom from imprisonment lies at
the heart of the liberty protected by the Due Process Clause.
Government detention violates the Clause unless it is ordered in a
criminal proceeding with adequate procedural safeguards or a
special justification outweighs the individual's liberty interest.
The instant proceedings are civil and assumed to be nonpunitive,
and the Government proffers no sufficiently strong justification
for indefinite civil detention under this statute. The first
justification-preventing flight-is weak or nonexistent where
removal seems a remote possibility. Preventive detention based on
the second justification-protecting the community-has been upheld
only when limited to specially dangerous individuals and subject to
strong procedural protections. When preventive detention is
potentially indefinite, this dangerousness rationale must also be
accompanied by some other special circumstance, such as mental
illness, that helps to create the danger. The civil confinement
here is potentially permanent, and once the flight risk
justification evaporates, the only special circumstance is the
alien's removable status, which bears no relation to dangerousness.
Moreover, the sole procedural protections here are found in
administrative proceedings, where the alien bears the burden of
proving he is not dangerous, without (according to the Government)
significant later judicial review. The Constitution may well
preclude granting an administrative body unreviewable authority to
make determinations implicating fundamental rights. Pp.
690-692.
(b)
Shaughnessy v.
United States ex rel. Mezei,
345 U. S. 206-in
which an alien was indefinitely detained as he attempted to reenter
the country-does not support the Government's argument that alien
status itself can justify indefinite detention. Once an alien
enters the country, the legal circumstance changes, for the Due
Process Clause applies to all persons within the United States,
including aliens, whether their presence is lawful, unlawful,
temporary, or permanent. Nor do cases holding that, because
Congress has plenary power to create immigration law, the Judicial
Branch must defer to Executive and Legislative Branch
decisionmaking in that area help the Government, because that power
is subject to constitutional limits. Finally, the aliens' liberty
interest is not diminished by their lack of a legal right to live
at large, for the choice at issue here is between imprisonment and
supervision under
680
Syllabus
release conditions that may not be violated and their liberty
interest is strong enough to raise a serious constitutional problem
with indefinite detention. Pp. 692-696.
(c) Despite the constitutional problem here, if this Court were
to find a clear congressional intent to grant the Attorney General
the power to indefinitely detain an alien ordered removed, the
Court would be required to give it effect. But this Court finds no
clear indication of such intent. The statute's use of "may" is
ambiguous and does not necessarily suggest unlimited discretion.
Similar related statutes requiring detention of criminal aliens
during removal proceedings and the removal period do not show that
Congress authorized indefinite detention here. Finally, nothing in
the statute's legislative history clearly demonstrates a
congressional intent to authorize indefinite, perhaps permanent,
detention. Pp. 696-699.
3. The application of the "reasonable time" limitation is
subject to federal-court review. The basic federal habeas statute
grants the federal courts authority to determine whether
post-removal-period detention is pursuant to statutory authority.
In answering that question, the court must ask whether the
detention exceeds a period reasonably necessary to secure removal.
It should measure reasonableness primarily in terms of the
statute's purpose of assuring the alien's presence at the moment of
removal. Thus, if removal is not reasonably foreseeable, the court
should hold continued detention unreasonable and no longer
authorized. If it is foreseeable, the court should consider the
risk of the alien's committing further crimes as a factor
potentially justifying continued confinement. Without abdicating
their responsibility to review the detention's lawfulness, the
courts can take appropriate account of such matters as the
Executive Branch's greater immigrationrelated expertise, the
Immigration and Naturalization Service's administrative needs and
concerns, and the Nation's need to speak with one voice on
immigration. In order to limit the occasions when courts will need
to make the difficult judgments called for by the recognition of
this necessary Executive leeway, it is practically necessary to
recognize a presumptively reasonable period of detention. It is
unlikely that Congress believed that all reasonably foreseeable
removals could be accomplished in 90 days, but there is reason to
believe that it doubted the constitutionality of more than six
months' detention. Thus, for the sake of uniform administration in
the federal courts, six months is the appropriate period. After the
6-month period, once an alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably
foreseeable future, the Government must furnish evidence sufficient
to rebut that showing. Pp. 699-701.
681
4. The standard that the Fifth Circuit applied in holding
Zadvydas' continued detention lawful seems to require an alien
seeking release to show the absence of
any prospect of
removal-no matter how unlikely or unforeseeable-and thus demands
more than the statute can bear. The Ninth Circuit's conclusion that
Ma should be released may have rested solely upon the absence of a
repatriation agreement without giving due weight to the likelihood
of successful future negotiations. P.702.
185 F.3d
279 and
208 F.3d
815, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which THOMAS, J., joined,
post, p. 702. KENNEDY, J., filed a dissenting opinion, in
which REHNQUIST, C. J., joined, and in which SCALIA and THOMAS,
JJ., joined as to Part I,
post, p. 705.
Jay W Stansell argued the cause for respondent in No.
00-38. With him on the brief were
Thomas W Hillier II and
Jennifer E. Wellman.
Robert F. Barnard argued the cause for petitioner in No.
99-7791. With him on the briefs was
Virginia Laughlin
Schlueter.
Deputy Solicitor General Kneedler argued the cause for
respondents in No. 99-7791 and petitioners in No. 00-38. With him
on the briefs were Acting Solicitor General Underwood, former
Solicitor General Waxman, Assistant Attorney General Ogden, Beth S.
Brinkmann, Donald Keener, and Quynh Vu. *
*
Daniel J.
Popeo and
Richard A. Samp filed
a brief for the Washington Legal Foundation et al. as
amici
curiae urging affirmance in No. 99-7791.
Briefs of
amici curiae urging affirmance in No. 00-38
were filed for the Catholic Legal Immigration Network, Inc., et al.
by
Laurie Joyce and
Josh Dratel; for the American
Association of Jews from the Former USSR et al. by
Nancy
Morawetz; for the Lawyers Committee for Human Rights by
Seth
M. M. Stodder; for the American Civil Liberties Union et al. by
Judy Rabinovitz, Lucas Guttentag, Steven R. Shapiro, Wanyong Lai
Austin, Jayashri Srikantiah, and
Aaron H. Caplan; for
Human Rights Watch et al. by
William J.
Aceves and
Paul L. Hoffman; and for Carolyn Patty Blum et al. by
George A. Cumming, Jr., and
Charles D.
Weisselberg.
682
JUSTICE BREYER delivered the opinion of the Court. When an alien
has been found to be unlawfully present in the United States and a
final order of removal has been entered, the Government ordinarily
secures the alien's removal during a subsequent 90-day statutory
"removal period," during which time the alien normally is held in
custody.
A special statute authorizes further detention if the Government
fails to remove the alien during those 90 days. It says:
"An alien ordered removed [1] who is inadmissible ... [2] [or]
removable [as a result of violations of status requirements or
entry conditions, violations of criminal law, or reasons of
security or foreign policy] or [3] who has been determined by the
Attorney General to be a risk to the community or unlikely to
comply with the order of removal, may be detained beyond the
removal period and, if released, shall be subject to [certain]
terms of supervision .. "8 U. S. C. § 1231(a)(6) (1994 ed., Supp.
V).
In these cases, we must decide whether this postremoval-period
statute authorizes the Attorney General to detain a removable alien
indefinitely beyond the removal period or only for a period
reasonably necessary to secure the alien's removal. We deal
here with aliens who were admitted to the United States but
subsequently ordered removed. Aliens who have not yet gained
initial admission to this country would present a very different
question. See
infra, at 693-694. Based on our conclusion
that indefinite detention of aliens in the former category would
raise serious constitutional concerns, we construe the statute to
contain an implicit "reasonable time" limitation, the application
of which is subject to federal-court review.
683
I A
The post-removal-period detention statute is one of a related
set of statutes and regulations that govern detention during and
after removal proceedings. While removal proceedings are in
progress, most aliens may be released on bond or paroled. 66 Stat.
204, as added and amended, 110 Stat. 3009-585, 8 U. S. C. §§
1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final removal
order and during the 90-day removal period, however, aliens must be
held in custody. § 1231(a)(2). Subsequently, as the
post-removal-period statute provides, the Government "may" continue
to detain an alien who still remains here or release that alien
under supervision. § 1231(a)(6).
Related Immigration and Naturalization Service (INS) regulations
add that the INS District Director will initially review the
alien's records to decide whether further detention or release
under supervision is warranted after the 90-day removal period
expires. 8 CFR §§ 241.4(c)(1), (h), (k)(l)(i) (2001). If the
decision is to detain, then an INS panel will review the matter
further, at the expiration of a 3-month period or soon thereafter.
§ 241.4(k)(2)(ii). And the panel will decide, on the basis of
records and a possible personal interview, between still further
detention or release under supervision. § 241.4(i). In making this
decision, the panel will consider, for example, the alien's
disciplinary record, criminal record, mental health reports,
evidence of rehabilitation, history of flight, prior immigration
history, and favorable factors such as family ties. § 241.4(f). To
authorize release, the panel must find that the alien is not likely
to be violent, to pose a threat to the community, to flee if
released, or to violate the conditions of release. § 241.4(e). And
the alien must demonstrate "to the satisfaction of the Attorney
General" that he will pose no danger or risk of flight.
684
§ 241.4(d)(1). If the panel decides against release, it must
review the matter again within a year, and can review it earlier if
conditions change. §§ 241.4(k)(2)(iii), (v).
B 1
We consider two separate instances of detention. The first
concerns Kestutis Zadvydas, a resident alien who was born,
apparently of Lithuanian parents, in a displaced persons camp in
Germany in 1948. When he was eight years old, Zadvydas immigrated
to the United States with his parents and other family members, and
he has lived here ever since.
Zadvydas has a long criminal record, involving drug crimes,
attempted robbery, attempted burglary, and theft. He has a history
of flight, from both criminal and deportation proceedings. Most
recently, he was convicted of possessing, with intent to
distribute, cocaine; sentenced to 16 years' imprisonment; released
on parole after two years; taken into INS custody; and, in 1994,
ordered deported to Germany. See 8 U. S. C. § 1251(a)(2) (1988 ed.,
Supp. V) (delineating crimes that make alien deportable).
In 1994, Germany told the INS that it would not accept Zadvydas
because he was not a German citizen. Shortly thereafter, Lithuania
refused to accept Zadvydas because he was neither a Lithuanian
citizen nor a permanent resident. In 1996, the INS asked the
Dominican Republic (Zadvydas' wife's country) to accept him, but
this effort proved unsuccessful. In 1998, Lithuania rejected, as
inadequately documented, Zadvydas' effort to obtain Lithuanian
citizenship based on his parents' citizenship; Zadvydas'
reapplication is apparently still pending.
The INS kept Zadvydas in custody after expiration of the removal
period. In September 1995, Zadvydas filed a petition for a writ of
habeas corpus under 28 U. S. C. § 2241 chal-
685
lenging his continued detention. In October 1997, a Federal
District Court granted that writ and ordered him released under
supervision.
Zadvydas v.
Caplinger, 986 F. Supp.
1011, 1027-1028 (ED La.). In its view, the Government would never
succeed in its efforts to remove Zadvydas from the United States,
leading to his permanent confinement, contrary to the Constitution.
Id., at 1027.
The Fifth Circuit reversed this decision.
Zadvydas v.
Underdown, 185 F.3d
279 (1999). It concluded that Zadvydas' detention did not
violate the Constitution because eventual deportation was not
"impossible," good-faith efforts to remove him from the United
States continued, and his detention was subject to periodic
administrative review.
Id., at 294,297. The Fifth Circuit
stayed its mandate pending potential review in this Court.
2
The second case is that of Kim Ho Ma. Ma was born in Cambodia in
1977. When he was two, his family fled, taking him to refugee camps
in Thailand and the Philippines and eventually to the United
States, where he has lived as a resident alien since the age of
seven. In 1995, at age 17, Ma was involved in a gang-related
shooting, convicted of manslaughter, and sentenced to 38 months'
imprisonment. He served two years, after which he was released into
INS custody.
In light of his conviction of an "aggravated felony," Ma was
ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F) (defining certain
violent crimes as aggravated felonies), 1227(a)(2)(A)(iii) (1994
ed., Supp. IV) (aliens convicted of aggravated felonies are
deportable). The 90-day removal period expired in early 1999, but
the INS continued to keep Ma in custody, because, in light of his
former gang membership, the nature of his crime, and his planned
participation in a prison hunger strike, it was "unable to conclude
that
686
Mr. Ma would remain nonviolent and not violate the conditions of
release." App. to Pet. for Cert. in No. 00-38, p. 87a.
In 1999, Ma filed a petition for a writ of habeas corpus under
28 U. S. C. § 2241. A panel of five judges in the Federal District
Court for the Western District of Washington, considering Ma's and
about 100 similar cases together, issued a joint order holding that
the Constitution forbids postremoval-period detention unless there
is "a realistic chance that [the] alien will be deported" (thereby
permitting classification of the detention as "in aid of
deportation"). Binh
Phan v.
Reno, 56 F. Supp. 2d
1149, 1156 (1999). The District Court then held an evidentiary
hearing, decided that there was no "realistic chance" that Cambodia
(which has no repatriation treaty with the United States) would
accept Ma, and ordered Ma released. App. to Pet. for Cert. in No.
00-38, at 60a-61a.
The Ninth Circuit affirmed Ma's release. Kim Ho Ma v.
Reno, 208 F.3d
815 (2000). It concluded, based in part on constitutional
concerns, that the statute did not authorize detention for more
than a "reasonable time" beyond the 90-day period authorized for
removal.
Id., at 818. And, given the lack of a repatriation
agreement with Cambodia, that time had expired upon passage of the
90 days.
Id., at 830-831.
3
Zadvydas asked us to review the decision of the Fifth Circuit
authorizing his continued detention. The Government asked us to
review the decision of the Ninth Circuit forbidding Ma's continued
detention. We granted writs in both cases, agreeing to consider
both statutory and related constitutional questions. See also
Duy Dac Ho v.
Greene, 204 F. 3d 1045, 1060 (CAlO
2000) (upholding Attorney General's statutory and constitutional
authority to detain alien indefinitely). We consolidated the two
cases for argument; and we now decide them together.
687
II
We note at the outset that the primary federal habeas corpus
statute, 28 U. S. C. § 2241, confers jurisdiction upon the federal
courts to hear these cases. See § 2241(c)(3) (authorizing any
person to claim in federal court that he or she is being held "in
custody in violation of the Constitution or laws ... of the United
States"). Before 1952, the federal courts considered challenges to
the lawfulness of immigration-related detention, including
challenges to the validity of a deportation order, in habeas
proceedings. See
Heikkila v.
Barber, 345 U. S. 229, 230,
235-236 (1953). Beginning in 1952, an alternative method for review
of de
portation orders, namely, actions brought in federal
district court under the Administrative Procedure Act (AP A),
became available. See
Shaughnessy v.
Pedreiro,
349 U. S. 48,
51-52 (1955). And in 1961 Congress replaced district court AP A
review with initial
deportation order review in courts of
appeals. See Act of Sept. 26, 1961, § 5, 75 Stat. 651 (formerly
codified at 8 U. S. C. § 1l05a(a)) (repealed 1996). The 1961 Act
specified that federal habeas courts were also available to hear
statutory and constitutional challenges to
deportation (and
exclusion)
orders. See 8 U. S. C. §§ 1l05a(a)(10), (b)
(repealed 1996). These statutory changes left habeas untouched as
the basic method for obtaining review of continued
custody
after a deportation order had become final. See
Cheng Fan
Kwok v.
INS, 392 U. S. 206, 212,
215-216 (1968) (holding that § 1l05a(a) applied only to challenges
to determinations made during deportation proceedings and motions
to reopen those proceedings).
More recently, Congress has enacted several statutory provisions
that limit the circumstances in which judicial review of
deportation decisions is available. But none applies here. One
provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V), simply forbids
courts to construe
that section "to create any ...
procedural right or benefit that is legally enforce-
688
able"; it does not deprive an alien of the right to rely on 28
U. S. C. § 2241 to challenge detention that is without statutory
authority.
Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed.,
Supp. V), says that "no court shall have jurisdiction to review"
decisions "specified ... to be in the discretion of the Attorney
General." The aliens here, however, do not seek review of the
Attorney General's exercise of discretion; rather, they challenge
the extent of the Attorney General's authority under the
post-removal-period detention statute. And the extent of that
authority is not a matter of discretion. See also,
e. g., §
1226(e) (applicable to certain detentionrelated decisions in period
preceding entry of final removal order); § 1231(a)(4)(D)
(applicable to assertion of causes or claims under §1231(a)(J,),
which is not at issue here); §§ 1252(a)(1), (a)(2)(C) (applicable
to judicial review of "final order[s] of removal"); § 1252(g)
(applicable to decisions "to commence proceedings, adjudicate
cases, or execute removalorders").
We conclude that § 2241 habeas corpus proceedings remain
available as a forum for statutory and constitutional challenges to
post-removal-period detention. And we turn to the merits of the
aliens' claims.
III
The post-removal-period detention statute applies to certain
categories of aliens who have been ordered removed, namely,
inadmissible aliens, criminal aliens, aliens who have violated
their nonimmigrant status conditions, and aliens removable for
certain national security or foreign relations reasons, as well as
any alien "who has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the order of
removal." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V); see also 8
CFR § 241.4(a) (2001). It says that an alien who falls into one of
these cate-
689
gories "may be detained beyond the removal period and, if
released, shall be subject to [certain] terms of supervision." 8 U.
S. C. § 1231(a)(6) (1994 ed., Supp. V).
The Government argues that the statute means what it literally
says. It sets no "limit on the length of time beyond the removal
period that an alien who falls within one of the Section 1231(a)(6)
categories may be detained." Brief for Petitioners in No. 00-38, p.
22. Hence, "whether to continue to detain such an alien and, if so,
in what circumstances and for how long" is up to the Attorney
General, not up to the courts.
Ibid.
"[I]t is a cardinal principle" of statutory interpretation,
however, that when an Act of Congress raises "a serious doubt" as
to its constitutionality, "this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided."
Crowell v.
Benson, 285 U. S. 22, 62 (1932);
see also
United States v.
X-Citement Video, Inc.,
513 U. S. 64, 78
(1994);
United States v.
Jin Fuey Moy, 241 U. S. 394, 401
(1916); cf.
Almendarez-Torres v.
United States,
523 U. S. 224,
238 (1998) (construction of statute that avoids invalidation best
reflects congressional will). We have read significant limitations
into other immigration statutes in order to avoid their
constitutional invalidation. See
United States v.
Witkovich, 353
U. S. 194, 195, 202 (1957) (construing a grant of authority to
the Attorney General to ask aliens whatever questions he "deem[s]
fit and proper" as limited to questions "reasonably calculated to
keep the Attorney General advised regarding the continued
availability for departure of aliens whose deportation is
overdue"). For similar reasons, we read an implicit limitation into
the statute before us. In our view, the statute, read in light of
the Constitution's demands, limits an alien's post-removalperiod
detention to a period reasonably necessary to bring about that
alien's removal from the United States. It does not permit
indefinite detention.
690
A
A statute permitting indefinite detention of an alien would
raise a serious constitutional problem. The Fifth Amendment's Due
Process Clause forbids the Government to "depriv[e]" any "person
... of ... liberty ... without due process of law." Freedom from
imprisonment-from government custody, detention, or other forms of
physical restraint-lies at the heart of the liberty that Clause
protects. See
Foucha v.
Louisiana, 504 U. S. 71, 80 (1992).
And this Court has said that government detention violates that
Clause unless the detention is ordered in a
criminal
proceeding with adequate procedural protections, see
United
States v.
Salerno, 481 U. S. 739, 746
(1987), or, in certain special and "narrow" nonpunitive
"circumstances,"
Foucha, supra, at 80, where a special
justification, such as harm-threatening mental illness, outweighs
the "individual's constitutionally protected interest in avoiding
physical restraint."
Kansas v.
Hendricks, 521 U. S. 346, 356
(1997).
The proceedings at issue here are civil, not criminal, and we
assume that they are nonpunitive in purpose and effect. There is no
sufficiently strong special justification here for indefinite civil
detention-at least as administered under this statute. The statute,
says the Government, has two regulatory goals: "ensuring the
appearance of aliens at future immigration proceedings" and
"[p]reventing danger to the community." Brief for Respondents in
No. 99-7791, p. 24. But by definition the first
justification-preventing flight-is weak or nonexistent where
removal seems a remote possibility at best. As this Court said in
Jackson v.
Indiana, 406 U. S. 715 (1972), where
detention's goal is no longer practically attainable, detention no
longer "bear[s] [a] reasonable relation to the purpose for which
the individual [was] committed."
Id., at 738.
The second justification-protecting the community-does not
necessarily diminish in force over time. But we have
691
upheld preventive detention based on dangerousness only when
limited to specially dangerous individuals and subject to strong
procedural protections. Compare
Hendricks, supra, at 368
(upholding scheme that imposes detention upon "a small segment of
particularly dangerous individuals" and provides "strict procedural
safeguards"), and
Salerno, supra, at 747, 750-752 (in
upholding pretrial detention, stressing "stringent time
limitations," the fact that detention is reserved for the "most
serious of crimes," the requirement of proof of dangerousness by
clear and convincing evidence, and the presence of judicial
safeguards), with
Foucha, supra, at 81-83 (striking down
insanity-related detention system that placed burden on detainee to
prove nondangerousness). In cases in which preventive detention is
of potentially
indefinite duration, we have also demanded
that the dangerousness rationale be accompanied by some other
special circumstance, such as mental illness, that helps to create
the danger. See
Hendricks, supra, at 358, 368.
The civil confinement here at issue is not limited, but
potentially permanent. Cf.
Salerno, supra, at 747 (noting
that "maximum length of pretrial detention is limited" by
"stringent" requirements);
Carlson v.
Landon,
342 U. S. 524,
545546 (1952) (upholding temporary detention of alien during
deportation proceeding while noting that "problem of ... unusual
delay" was not present). The provision authorizing detention does
not apply narrowly to "a small segment of particularly dangerous
individuals,"
Hendricks, supra, at 368, say, suspected
terrorists, but broadly to aliens ordered removed for many and
various reasons, including tourist visa violations. See 8 U. S. C.
§ 1231(a)(6) (1994 ed., Supp. V) (referencing § 1227(a)(1)(C)); cf.
Hendricks, 521 U. S., at 357358 (only individuals with "past
sexually violent behavior and a present mental condition that
creates a likelihood of such conduct in the future" may be
detained). And, once the flight risk justification evaporates, the
only special cir-
692
cum stance present is the alien's removable status itself, which
bears no relation to a detainee's dangerousness. Cf.
id., at
358;
Foucha, supra, at 82.
Moreover, the sole procedural protections available to the alien
are found in administrative proceedings, where the alien bears the
burden of proving he is not dangerous, without (in the Government's
view) significant later judicial review. Compare 8 CFR §
241.4(d)(1) (2001) (imposing burden of proving nondangerousness
upon alien) with
Foucha, supra, at 82 (striking down
insanity-related detention for that very reason). This Court has
suggested, however, that the Constitution may well preclude
granting "an administrative body the unreviewable authority to make
determinations implicating fundamental rights."
Superintendent,
Mass. Correctional Institution at Walpole v.
Hill,
472 U. S. 445,
450 (1985) (O'CONNOR, J.); see also
Crowell, 285 U. S., at
87 (Brandeis, J., dissenting) ("[U]nder certain circumstances, the
constitutional requirement of due process is a requirement of
judicial process"). The Constitution demands greater procedural
protection even for property. See
South Carolina v.
Regan, 465 U.
S. 367, 393 (1984) (O'CONNOR, J., concurring in judgment);
Phillips v.
Commissioner, 283 U. S. 589, 595-597
(1931) (Brandeis, J.). The serious constitutional problem arising
out of a statute that, in these circumstances, permits an
indefinite, perhaps permanent, deprivation of human liberty without
any such protection is obvious.
The Government argues that, from a constitutional perspective,
alien status itself can justify indefinite detention, and points to
Shaughnessy v.
United States ex rel. Mezei, 345 U. S. 206 (1953), as
support. That case involved a once lawfully admitted alien who left
the United States, returned after a trip abroad, was refused
admission, and was left on Ellis Island, indefinitely detained
there because the Government could not find another country to
accept him. The Court held that Mezei's detention did not violate
the Constitution.
Id., at 215-216.
693
Although
Mezei, like the present cases, involves
indefinite detention, it differs from the present cases in a
critical respect. As the Court emphasized, the alien's extended
departure from the United States required him to seek entry into
this country once again. His presence on Ellis Island did not count
as entry into the United States. Hence, he was "treated," for
constitutional purposes, "as if stopped at the border."
Id.,
at 213, 215. And that made all the difference.
The distinction between an alien who has effected an entry into
the United States and one who has never entered runs throughout
immigration law. See
Kaplan v.
Tod, 267 U. S. 228, 230 (1925)
(despite nine years' presence in the United States, an "excluded"
alien "was still in theory of law at the boundary line and had
gained no foothold in the United States");
Leng May Ma v.
Barber, 357 U.
S. 185, 188-190 (1958) (alien "paroled" into the United States
pending admissibility had not effected an "entry"). It is well
established that certain constitutional protections available to
persons inside the United States are unavailable to aliens outside
of our geographic borders. See
United States v.
VerdugoUrquidez, 494 U. S. 259, 269 (1990)
(Fifth Amendment's protections do not extend to aliens outside the
territorial boundaries);
Johnson v.
Eisentrager,
339 U. S. 763,
784 (1950) (same). But once an alien enters the country, the legal
circumstance changes, for the Due Process Clause applies to all
"persons" within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent. See
Plyler v.
Doe, 457 U. S. 202, 210
(1982);
Mathews v.
Diaz, 426 U. S. 67, 77 (1976);
Kwong Hai Ghew v.
Golding, 344 U. S. 590, 596-598,
and n. 5 (1953);
Yick Wo v.
Hopkins, 118 U. S. 356, 369
(1886); cf.
Mezei, supra, at 212 ("[A]liens who have once
passed through our gates, even illegally, may be expelled only
after proceedings conforming to traditional standards of fairness
encompassed in due process of law"). Indeed, this Court has held
that the Due Process
694
Clause protects an alien subject to a final order of
deportation, see
Wong Wing v.
United States, 163 U. S. 228, 238
(1896), though the nature of that protection may vary depending
upon status and circumstance, see
Landon v.
Plasencia, 459
U. S. 21, 32-34 (1982);
Johnson, supra, at 770.
In
Wong Wing, supra, the Court held unconstitutional a
statute that imposed a year of hard labor upon aliens subject to a
final deportation order. That case concerned substantive
protections for aliens who had been ordered removed, not procedural
protections for aliens whose removability was being determined. Cf.
post, at 704 (SCALIA, J., dissenting). The Court held that
punitive measures could not be imposed upon aliens ordered removed
because "all persons within the territory of the United States are
entitled to the protection" of the Constitution. 163 U. S., at 238
(citing
Yick Wo, supra, at 369 (holding that equal
protection guarantee applies to Chinese aliens)); see also
Witkovich, 353 U. S., at 199, 201 (construing statute which
applied to aliens ordered deported in order to avoid substantive
constitutional problems). And contrary to JUSTICE SCALIA'S
characterization, see
post, at 703-705, in
Mezei
itself, both this Court's rejection of Mezei's challenge to the
procedures by which he was deemed excludable and its rejection of
his challenge to continued detention rested upon a basic
territorial distinction. See
Mezei, supra, at 215 (holding
that Mezei's presence on Ellis Island was not "considered a
landing" and did "not affec[t]" his legal or constitutional status
(internal quotation marks omitted)).
In light of this critical distinction between
Mezei and
the present cases,
Mezei does not offer the Government
significant support, and we need not consider the aliens' claim
that subsequent developments have undermined
Mezei's legal
authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief
for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers'
Committee for Human Rights as
Amicus Curiae in No. 00-38,
pp. 15-20. Nor are we aware of any other authority that would
support JUSTICE KENNEDY'S limitation of
695
due process protection for removable aliens to freedom from
detention that is arbitrary or capricious. See
post, at
717722 (dissenting opinion).
The Government also looks for support to cases holding that
Congress has "plenary power" to create immigration law, and that
the Judicial Branch must defer to Executive and Legislative Branch
decisionmaking in that area. Brief for Respondents in No. 99-7791,
at 17, 20 (citing
Harisiades v.
Shaughnessy, 342 U. S. 580, 588-589
(1952)). But that power is subject to important constitutional
limitations. See
INS v.
Chadha, 462 U. S. 919, 941-942
(1983) (Congress must choose "a constitutionally permissible means
of implementing" that power);
The Chinese Exclusion Case,
130 U. S. 581, 604 (1889) (congressional authority limited "by
the Constitution itself and considerations of public policy and
justice which control, more or less, the conduct of all civilized
nations"). In these cases, we focus upon those limitations. In
doing so, we nowhere deny the right of Congress to remove aliens,
to subject them to supervision with conditions when released from
detention, or to incarcerate them where appropriate for violations
of those conditions. See 8 U. S. C. § 1231(a)(3) (1994 ed., Supp.
V) (granting authority to Attorney General to prescribe regulations
governing supervision of aliens not removed within 90 days); § 1253
(imposing penalties for failure to comply with release conditions).
The question before us is not one of "'confer[ring] on those
admitted the right to remain against the national will'" or
"'sufferance of aliens'" who should be removed.
Post, at 703
(SCALIA, J., dissenting) (emphasis deleted) (quoting
Mezei,
345 U. S., at 222-223 (Jackson, J., dissenting)). Rather, the issue
we address is whether aliens that the Government finds itself
unable to remove are to be condemned to an indefinite term of
imprisonment within the United States.
Nor do the cases before us require us to consider the political
branches' authority to control entry into the United States. Hence
we leave no "unprotected spot in the Na-
696
tion's armor."
Kwong Hai Chew, 344 U. S., at 602. Neither
do we consider terrorism or other special circumstances where
special arguments might be made for forms of preventive detention
and for heightened deference to the judgments of the political
branches with respect to matters of national security. The sole
foreign policy consideration the Government mentions here is the
concern lest courts interfere with "sensitive" repatriation
negotiations. Brief for Respondents in No. 99-7791, at 21. But
neither the Government nor the dissents explain how a habeas
court's efforts to determine the likelihood of repatriation, if
handled with appropriate sensitivity, could make a significant
difference in this respect. See
infra, at 699-700.
Finally, the Government argues that, whatever liberty interest
the aliens possess, it is "greatly diminished" by their lack of a
legal right to "liv[e] at large in this country." Brief for
Respondents in No. 99-7791, at 47; see also
post, at 703
(SCALIA, J., dissenting) (characterizing right at issue as "right
to release into this country"). The choice, however, is not between
imprisonment and the alien "living at large." Brief for Respondents
in No. 99-7791, at 47. It is between imprisonment and supervision
under release conditions that may not be violated. See
supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994
ed., Supp. V)); 8 CFR § 241.5 (2001) (establishing conditions of
release after removal period). And, for the reasons we have set
forth, we believe that an alien's liberty interest is, at the
least, strong enough to raise a serious question as to whether,
irrespective of the procedures used, cf.
post, at 722-724
(KENNEDY, J., dissenting), the Constitution permits detention that
is indefinite and potentially permanent.
B
Despite this constitutional problem, if "Congress has made its
intent" in the statute "clear, 'we must give effect to that
intent.'"
Miller v.
French, 530 U. S. 327, 336 (2000)
(quoting
Sinclair Refining Co. v.
Atkinson, 370 U. S. 195,215
(1962)).
697
We cannot find here, however, any clear indication of
congressional intent to grant the Attorney General the power to
hold indefinitely in confinement an alien ordered removed. And that
is so whether protecting the community from dangerous aliens is a
primary or (as we believe) secondary statutory purpose. Cf.
post, at 706, 708-709 (KENNEDY, J., dissenting). After all,
the provision is part of a statute that has as its basic purpose
effectuating an alien's removal. Why should we assume that Congress
saw the alien's dangerousness as unrelated to this purpose?
The Government points to the statute's word "may." But while
"may" suggests discretion, it does not necessarily suggest
unlimited discretion. In that respect the word "may" is ambiguous.
Indeed, if Congress had meant to authorize long-term detention of
unremovable aliens, it certainly could have spoken in clearer
terms. Cf. 8 U. S. C. § 1537(b)(2)(C) (1994 ed., Supp. V) ("If no
country is willing to receive" a terrorist alien ordered removed,
"the Attorney General may, notwithstanding any other provision of
law, retain the alien in custody" and must review the detention
determination every six months).
The Government points to similar related statutes that
require detention of criminal aliens during removal
proceedings and the removal period, and argues that these show that
mandatory detention is the rule while discretionary release is the
narrow exception. See Brief for Petitioners in No. 00-38, at 26-28
(citing 8 U. S. C. §§ 1226(c), 1231(a)(2)). But the statute before
us applies not only to terrorists and criminals, but also to
ordinary visa violators, see
supra, at 691; and, more
importantly, post-removal-period detention, unlike detention
pending a determination of removability or during the subsequent
90-day removal period, has no obvious termination point.
The Government also points to the statute's history. That
history catalogs a series of changes, from an initial period
(before 1952) when lower courts had interpreted statutory
698
silence, Immigration Act of 1917, ch. 29, §§ 19, 20, 39 Stat.
889, 890, to mean that deportation-related detention must end
within a reasonable time,
Spector v.
Landon,
209 F.2d
481, 482
(CA9 1954) (collecting cases);
United States
ex rel. Doukas v.
Wiley, 160 F.2d 92, 95
(CA7
1947);
United States ex rel. Ross v.
Wallis,
279 F.4d
1, 403-404
(CA2 1922), to a period (from the early
1950's through the late 1980's) when the statutes permitted, but
did not require, postdeportation-order detention for up to six
months, Immigration and Nationality Act of 1952, § 242(c), 66 Stat.
210, 8 U. S. C. §§ 1252(c), (d) (1982 ed.);
Witkovich, 353
U. S., at 198, to more recent statutes that have at times mandated
and at other times permitted the post-deportation-order detention
of aliens falling into certain categories such as aggravated
felons, Anti-Drug Abuse Act of 1988, § 7343(a), 102 Stat. 4470, 8
U. S. C. § 1252(a)(2) (mandating detention); Immigration Act of
1990, § 504(a), 104 Stat. 5049-5050, 8 U. S. C. §§ 1252(a)(2)(A),
(B) (permitting release under certain circumstances); Miscellaneous
and Technical Immigration and Naturalization Amendments of 1991, §
306(a)(4), 105 Stat. 1751, 8 U. S. C. § 1252(a)(2)(B) (same).
In early 1996, Congress explicitly expanded the group of aliens
subject to mandatory detention, eliminating provisions that
permitted release of criminal aliens who had at one time been
lawfully admitted to the United States. Antiterrorism and Effective
Death Penalty Act of 1996, § 439(c), 110 Stat. 1277. And later that
year Congress enacted the present law, which liberalizes
pre-existing law by shortening the removal period from six months
to 90 days, mandates detention of certain criminal aliens during
the removal proceedings and for the subsequent 90-day removal
period, and adds the post-removal-period provision here at issue.
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Div. C, §§ 303, 305, 110 Stat. 3009-585, 3009-598 to
3009-599; 8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V).
699
We have found nothing in the history of these statutes that
clearly demonstrates a congressional intent to authorize
indefinite, perhaps permanent, detention. Consequently,
interpreting the statute to avoid a serious constitutional threat,
we conclude that, once removal is no longer reasonably foreseeable,
continued detention is no longer authorized by statute. See 1 E.
Coke, Institutes *70b
("Cessante ratione legis cessat ipse
lex") (the rationale of a legal rule no longer being
applicable, that rule itself no longer applies).
IV
The Government seems to argue that, even under our
interpretation of the statute, a federal habeas court would have to
accept the Government's view about whether the implicit statutory
limitation is satisfied in a particular case, conducting little or
no independent review of the matter. In our view, that is not so.
Whether a set of particular circumstances amounts to detention
within, or beyond, a period reasonably necessary to secure removal
is determinative of whether the detention is, or is not, pursuant
to statutory authority. The basic federal habeas corpus statute
grants the federal courts authority to answer that question. See 28
U. S. C. § 2241(c)(3) (granting courts authority to determine
whether detention is "in violation of the ... laws ... of the
United States"). In doing so the courts carry out what this Court
has described as the "historic purpose of the writ," namely, "to
relieve detention by executive authorities without judicial triaL"
Brown v.
Allen, 344 U. S. 443, 533 (1953)
(Jackson, J., concurring in result).
In answering that basic question, the habeas court must ask
whether the detention in question exceeds a period reasonably
necessary to secure removal. I t should measure reasonableness
primarily in terms of the statute's basic purpose, namely, assuring
the alien's presence at the moment of removal. Thus, if removal is
not reasonably foreseeable, the court should hold continued
detention unreasonable and no
700
longer authorized by statute. In that case, of course, the
alien's release may and should be conditioned on any of the various
forms of supervised release that are appropriate in the
circumstances, and the alien may no doubt be returned to custody
upon a violation of those conditions. See
supra, at 695
(citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR §
241.5 (2001)). And if removal is reasonably foreseeable, the habeas
court should consider the risk of the alien's committing further
crimes as a factor potentially justifying confinement within that
reasonable removal period. See
supra, at 690-692.
We recognize, as the Government points out, that review must
take appropriate account of the greater immigrationrelated
expertise of the Executive Branch, of the serious administrative
needs and concerns inherent in the necessarily extensive INS
efforts to enforce this complex statute, and the Nation's need to
"speak with one voice" in immigration matters. Brief for
Respondents in No. 99-7791, at 19. But we believe that courts can
take appropriate account of such matters without abdicating their
legal responsibility to review the lawfulness of an alien's
continued detention.
Ordinary principles of judicial review in this area recognize
primary Executive Branch responsibility. They counsel judges to
give expert agencies decisionmaking leeway in matters that invoke
their expertise. See
Pension Benefit Guaranty Corporation v.
LTV Corp., 496
U. S. 633, 651-652 (1990). They recognize Executive Branch
primacy in foreign policy matters. See
Container Corp. of
America v.
Franchise Tax Bd., 463 U. S. 159, 196
(1983). And they consequently require courts to listen with care
when the Government's foreign policy judgments, including, for
example, the status of repatriation negotiations, are at issue, and
to grant the Government appropriate leeway when its judgments rest
upon foreign policy expertise.
We realize that recognizing this necessary Executive leeway will
often call for difficult judgments. In order to limit
701
the occasions when courts will need to make them, we think it
practically necessary to recognize some presumptively reasonable
period of detention. We have adopted similar presumptions in other
contexts to guide lower court determinations. See
Cheff v.
Schnackenberg, 384 U. S. 373, 379-380
(1966) (plurality opinion) (adopting rule, based on definition of
"petty offense" in United States Code, that right to jury trial
extends to all cases in which sentence of six months or greater is
imposed);
County of Riverside v.
McLaughlin, 500 U.
S. 44, 56-58 (1991) (O'CONNOR, J.) (adopting presumption, based on
lower court estimate of time needed to process arrestee, that
48-hour delay in probable-cause hearing after arrest is reasonable,
hence constitutionally permissible).
While an argument can be made for confining any presumption to
90 days, we doubt that when Congress shortened the removal period
to 90 days in 1996 it believed that all reasonably foreseeable
removals could be accomplished in that time. We do have reason to
believe, however, that Congress previously doubted the
constitutionality of detention for more than six months. See Juris.
Statement in
United States v.
Witkovich, O. T. 1956,
No. 295, pp. 8-9. Consequently, for the sake of uniform
administration in the federal courts, we recognize that period.
After this 6month period, once the alien provides good reason to
believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing. And for detention to
remain reasonable, as the period of prior postremoval confinement
grows, what counts as the "reasonably foreseeable future"
conversely would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must be released
after six months. To the contrary, an alien may be held in
confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable
future.
702
v
The Fifth Circuit held Zadvydas' continued detention lawful as
long as "good faith efforts to effectuate ... deportation continue"
and Zadvydas failed to show that deportation will prove
"impossible." 185 F. 3d, at 294, 297. But this standard would seem
to require an alien seeking release to show the absence of
any prospect of removal-no matter how unlikely or
unforeseeable-which demands more than our reading of the statute
can bear. The Ninth Circuit held that the Government was required
to release Ma from detention because there was no reasonable
likelihood of his removal in the foreseeable future. 208 F. 3d, at
831. But its conclusion may have rested solely upon the "absence"
of an "extant or pending" repatriation agreement without giving due
weight to the likelihood of successful future negotiations. See
id., at 831, and n. 30. Consequently, we vacate the judgments below
and remand both cases for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I join Part I of JUSTICE KENNEDY'S dissent, which establishes
the Attorney General's clear statutory authority to detain criminal
aliens with no specified time limit. I write separately because I
do not believe that, as JUSTICE KENNEDY suggests in Part II of his
opinion, there may be some situations in which the courts can order
release. I believe that in both
Zadvydas v.
Davis,
No. 99-7791, and
Ashcroft v. Ma, No. 00-38, a "careful
description" of the substantive right claimed,
Reno v.
Flores, 507 U.
S. 292, 302 (1993), suffices categorically to refute its
existence. A criminal alien under final order of removal who
allegedly will not be accepted by any other country in the
reasonably foreseeable future claims a constitutional right of
supervised release into the United States. This claim can be
repackaged as freedom
703
from "physical restraint" or freedom from "indefinite
detention,"
ante, at 689, 690, but it is at bottom a claimed
right of release into this country by an individual who
concededly has no legal right to be here. There is no such
constitutional right.
Like a criminal alien under final order of removal, an
inadmissible alien at the border has no right to be in the United
States.
The Chinese Exclusion Case, 130 U. S. 581, 603
(1889). In
Shaughnessy v.
United States ex rel. Mezei,
345 U. S. 206 (1953), we upheld potentially indefinite
detention of such an inadmissible alien whom the Government was
unable to return anywhere else. We said that "we [did] not think
that respondent's continued exclusion deprives him of any statutory
or constitutional right."
Id., at 215. While four Members of
the Court thought that Mezei deserved greater procedural
protections (the Attorney General had refused to divulge any
information as to why Mezei was being detained, id., at 209), no
Justice asserted that Mezei had a substantive constitutional right
to release into this country. And Justice Jackson's dissent, joined
by Justice Frankfurter, affirmatively asserted the opposite, with
no contradiction from the Court: "Due process does not invest any
alien with a right to enter the United States,
nor confer on
those admitted the right to remain against the national will.
Nothing in the Constitution requires admission
or sufferance
of aliens hostile to our scheme of government."
Id., at
222-223 (emphasis added). Insofar as a claimed legal right to
release into this country is concerned, an alien under final order
of removal stands on an equal footing with an inadmissible alien at
the threshold of entry: He has no such right.
The Court expressly declines to apply or overrule
Mezei,
ante, at 694, but attempts to distinguish it-or, I should
rather say, to obscure it in a legal fog. First, the Court claims
that "[t]he distinction between an alien who has effected an entry
into the United States and one who has never entered runs
throughout immigration law."
Ante, at 693. True enough, but
only where that distinction makes perfect
704
sense: with regard to the question of what
procedures are
necessary to prevent entry, as opposed to what
procedures
are necessary to eject a person already in the United States. See,
e. g., Landon v.
Plasencia, 459 U. S. 21, 32 (1982)
("Our cases have frequently suggested that a continuously present
resident alien is entitled to a fair hearing
when threatened
with deportation" (emphasis added)). The Court's citation of
Wong Wing v.
United States, 163 U. S. 228 (1896), for
the proposition that we have "held that the Due Process Clause
protects an alien subject to a final order of deportation,"
ante, at 693-694, is arguably relevant. That case at least
involved aliens under final order of deportation. * But all it held
is that they could not be subjected to the punishment of hard labor
without a judicial trial. I am sure they cannot be tortured, as
well-but neither prohibition has anything to do with their right to
be released into the United States. Nor does
Wong Wing show
that the rights of detained aliens subject to final order of
deportation are different from the rights of aliens arrested and
detained at the border-unless the Court believes that the detained
alien in
Mezei could have been set to hard labor.
Mezei thus stands unexplained and undistinguished by the
Court's opinion. We are offered no justification why an alien under
a valid and final order of removal-which has
totally
extinguished whatever right to presence in this country he
possessed-has any greater due process right to be released into the
country than an alien at the border seeking entry.
*The Court also cites
Landon v.
Plasencia,
459 U. S. 21
(1982), as oblique support for the claim that the due process
protection afforded aliens under final order of removal "may vary
depending upon status and circumstance."
Ante, at 694. But
that case is entirely inapt because it did not involve an alien
subject to a final order of deportation. The Court also cites
Johnson v.
Eisentrager, 339 U. S. 763, 770
(1950),
ante, at 694, but that case is doubly irrelevant:
because it dealt not with deportation but with the military's
detention of enemy aliens outside the territorial jurisdiction of
the United States, and because it rejected habeas corpus
jurisdiction anyway.
705
Congress undoubtedly thought that both groups of
aliensinadmissible aliens at the threshold and criminal aliens
under final order of removal-could be constitutionally detained on
the same terms, since it provided the authority to detain both
groups in the very same statutory provision, see 8 U. S. C. §
1231(a)(6). Because I believe
Mezei controls these cases,
and, like the Court, I also see no reason to reconsider
Mezei, I find no constitutional impediment to the discretion
Congress gave to the Attorney General. JUSTICE KENNEDY'S dissent
explains the clarity of the detention provision, and I see no
obstacle to following the statute's plain meaning.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, and with
whom JUSTICE SCALIA and JUSTICE THOMAS join as to Part I,
dissenting.
The Court says its duty is to avoid a constitutional question.
It deems the duty performed by interpreting a statute in obvious
disregard of congressional intent; curing the resulting gap by
writing a statutory amendment of its own; committing its own grave
constitutional error by arrogating to the Judicial Branch the power
to summon high officers of the Executive to assess their progress
in conducting some of the Nation's most sensitive negotiations with
foreign powers; and then likely releasing into our general
population at least hundreds of removable or inadmissible aliens
who have been found by fair procedures to be flight risks, dangers
to the community, or both. Far from avoiding a constitutional
question, the Court's ruling causes systemic dislocation in the
balance of powers, thus raising serious constitutional concerns not
just for the cases at hand but for the Court's own view of its
proper authority. Any supposed respect the Court seeks in not
reaching the constitutional question is outweighed by the intrusive
and erroneous exercise of its own powers. In the guise of judicial
restraint the Court ought not to intrude upon the other branches.
The constitutional question the statute presents, it must be
acknowl-
706
edged, may be a significant one in some later case; but it ought
not to drive us to an incorrect interpretation of the statute. The
Court having reached the wrong result for the wrong reason, this
respectful dissent is required.
I
The Immigration and Nationality Act (IN A), 8 U. s. C. § 1101
et seq. (1994 ed. and Supp. V), is straightforward enough.
It provides:
"An alien ordered removed who is inadmissible under section 1182
of this title, removable under section 1227(a)(1)(C), 1227(a)(2),
or 1227(a)(4) of this title or who has been determined by the
Attorney General to be a risk to the community or unlikely to
comply with the order of removal, may be detained beyond the
removal period and, if released, shall be subject to the terms of
supervision in paragraph (3)." 8 U. S. C. § 1231(a)(6) (1994 ed.,
Supp. V).
By this statute, Congress confers upon the Attorney General
discretion to detain an alien ordered removed. It gives express
authorization to detain "beyond the removal period."
Ibid.
The class of removed aliens detainable under the section includes
aliens who were inadmissible and aliens subject to final orders of
removal, provided they are a risk to the community or likely to
flee. The issue to be determined is whether the authorization to
detain beyond the removal period is subject to the implied,
nontextuallimitation that the detention be no longer than
reasonably necessary to effect removal to another country. The
majority invokes the canon of constitutional doubt to read that
implied term into the statute. One can accept the premise that a
substantial constitutional question is presented by the prospect of
lengthy, even unending, detention in some instances; but the
statutory construction the Court adopts should be rejected in any
event. The interpretation has no basis in the lan-
707
guage or structure of the IN A and in fact contradicts and
defeats the purpose set forth in the express terms of the statutory
text.
The Court, it is submitted, misunderstands the principle of
constitutional avoidance which it seeks to invoke. The majority
gives a brief bow to the rule that courts must respect the
intention of Congress,
ante, at 696, but then waltzes away
from any analysis of the language, structure, or purpose of the
statute. Its analysis is not consistent with our precedents
explaining the limits of the constitutional doubt rule. The rule
allows courts to choose among constructions which are "fairly
possible,"
Crowell v.
Benson, 285 U. S. 22, 62
(1932), not to "'press statutory construction to the point of
disingenuous evasion even to avoid a constitutional question,'"
Salinas v.
United States, 522 U. S. 52, 60 (1997)
(quoting
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 57, n. 9
(1996)). Were a court to find two interpretations of equal
plausibility, it should choose the construction that avoids
confronting a constitutional question. The majority's reading of
the statutory authorization to "detai[n] beyond the removal
period," however, is not plausible. An interpretation which defeats
the stated congressional purpose does not suffice to invoke the
constitutional doubt rule, for it is "plainly contrary to the
intent of Congress."
United States v.
X-Citement Video,
Inc., 513 U. S.
64, 78 (1994). The majority announces it will reject the
Government's argument "that the statute means what it literally
says,"
ante, at 689, but then declines to offer any other
acceptable textual interpretation. The majority does not
demonstrate an ambiguity in the delegation of the detention power
to the Attorney General. It simply amends the statute to impose a
time limit tied to the progress of negotiations to effect the
aliens' removal. The statute cannot be so construed. The
requirement the majority reads into the law simply bears no
relation to the text; and in fact it defeats the statutory purpose
and design.
708
Other provisions in § 1231 itself do link the requirement of a
reasonable time period to the removal process. See,
e. g., §
1231(c)(1)(A) (providing that an alien who arrives at a port of
entry "shall be removed immediately on a vessel or aircraft" unless
"it is impracticable" to do so "within a
reasonable time"
(emphasis added)); § 1231(c)(3)(A)(ii)(II) (requiring the "owner of
a vessel or aircraft bringing an alien to the United States [to]
pay the costs of detaining and maintaining the alien ... for the
period of time
reasonably necessary for the owner to arrange
for repatriation" (emphasis added)). That Congress chose to impose
the limitation in these sections and not in § 1231(a)(6) is
evidence of its intent to measure the detention period by other
standards. When Congress has made express provisions for the
contingency that repatriation might be difficult or prolonged in
other portions of the statute, it should be presumed that its
omission of the same contingency in the detention section was
purposeful. Indeed, the reasonable time limits in the provisions
just mentioned simply excuse the duty of early removal. They do not
mandate release. An alien within one of these categories, say, a
ship stowaway, would be subject as well to detention beyond the
removal period under § 1231(a)(6), if the statute is read as
written. Under the majority's view, however, it appears the alien
must be released in six months even if presenting a real danger to
the community.
The 6-month period invented by the Court, even when modified by
its sliding standard of reasonableness for certain repatriation
negotiations, see
ante, at 701, makes the statutory purpose
to protect the community ineffective. The risk to the community
exists whether or not the repatriation negotiations have some end
in sight; in fact, when the negotiations end, the risk may be
greater. The authority to detain beyond the removal period is to
protect the community, not to negotiate the aliens' return. The
risk to the community survives repatriation negotiations. To a more
limited, but still significant, extent, so does the concern with
flight. It
709
is a fact of international diplomacy that governments and their
policies change; and if repatriation efforts can be revived, the
Attorney General has an interest in ensuring the alien can report
so the removal process can begin again.
Congress, moreover, was well aware of the difficulties
confronting aliens who are removable but who cannot be repatriated.
It made special provisions allowing them to be employed, a
privilege denied to other deportable aliens. See § 1231(a)(7)
(providing an "alien [who] cannot be removed due to the refusal of
all countries designated by the alien or under this section to
receive the alien" still remains eligible for employment in the
United States). Congress' decision to ameliorate the condition of
aliens subject to a final order of removal who cannot be
repatriated, but who need not be detained, illustrates a balance in
the statutory design. Yet the Court renders the other side of the
balance meaningless. The risk to the community posed by a removable
alien is a function of a variety of circumstances, circumstances
that do not diminish just because the alien cannot be deported
within some foreseeable time. Those circumstances include the
seriousness of the alien's past offenses, his or her efforts at
rehabilitation, and some indication from the alien that, given the
real prospect of detention, the alien will conform his or her
conduct. This is the purpose for the periodic review of detention
status provided for by the regulations. See 8 CFR § 241.4 (2001).
The Court's amendment of the statute reads out of the provision the
congressional decision that dangerousness alone is a sufficient
basis for detention, see
ante, at 699 (citing 1 E. Coke,
Institutes *70b), and reads out as well any meaningful structure
for supervised release.
The majority is correct to observe that in
United States
v.
Witkovich, 353 U. S. 194 (1957), the
Court "read significant limitations into" a statute,
ante,
at 689, but that does not permit us to avoid the proper reading of
the enactment now before us. In
Witkovich, the Court
construed former § 1252(d), which required an alien under a final
order of de-
710
portation "to give information under oath ... as the Attorney
General may deem fit and proper." 353 U. S., at 195. The Court held
that although the plain language "appears to confer upon the
Attorney General unbounded authority to require whatever
information he deems desirable of aliens whose deportation has not
been effected within six months," id., at 199, the constitutional
doubt this interpretation would raise meant the language would be
construed as limited to the provision of information "reasonably
calculated to keep the Attorney General advised regarding the
continued availability for departure of aliens whose deportation is
overdue,"
id., at 202. In
Witkovich the
interpretation of the text was in aid of the statutory purpose; in
the instant cases the interpretation nullifies the statutory
purpose. Here the statute by its own terms permits the Attorney
General to consider factors the Court now makes irrelevant.
The majority's unanchored interpretation ignores another
indication that the Attorney General's detention discretion was not
limited to this truncated period. Section 1231(a)(6) permits
continued detention not only of removable aliens but also of
inadmissible aliens, for instance those stopped at the border
before entry. Congress provides for detention of both categories
within the same statutory grant of authority. Accepting the
majority's interpretation, then, there are two possibilities,
neither of which is sustainable. On the one hand, it may be that
the majority's rule applies to both categories of aliens, in which
case we are asked to assume that Congress intended to restrict the
discretion it could confer upon the Attorney General so that all
inadmissible aliens must be allowed into our community within six
months. On the other hand, the majority's logic might be that
inadmissible and removable aliens can be treated differently. Yet
it is not a plausible construction of § 1231(a)(6) to imply a time
limit as to one class but not to another. The text does not admit
of this possibility. As a result, it is difficult to see why
"[a]liens who have not yet gained initial admission
711
to this country would present a very different question."
Ante, at 682.
Congress' power to detain aliens in connection with removal or
exclusion, the Court has said, is part of the Legislature's
considerable authority over immigration matters. See,
e. g.,
Wong Wing v.
United States, 163 U. S. 228, 235 (1896)
("Proceedings to exclude or expel would be vain if those accused
could not be held in custody pending the inquiry into their true
character and while arrangements were being made for their
deportation"). It is reasonable to assume, then, and it is the
proper interpretation of the INA and § 1231(a)(6), that when
Congress provided for detention "beyond the removal period," it
exercised its considerable power over immigration and delegated to
the Attorney General the discretion to detain inadmissible and
other removable aliens for as long as they are determined to be
either a flight risk or a danger to the Nation.
The majority's interpretation, moreover, defeats the very
repatriation goal in which it professes such interest. The Court
rushes to substitute a judicial judgment for the Executive's
discretion and authority. As the Government represents to us,
judicial orders requiring release of removable aliens, even on a
temporary basis, have the potential to undermine the obvious
necessity that the Nation speak with one voice on immigration and
foreign affairs matters. Brief for Respondents in No. 99-7791, p.
49. The result of the Court's rule is that, by refusing to accept
repatriation of their own nationals, other countries can effect the
release of these individuals back into the American community.
Ibid. If their own nationals are now at large in the United
States, the nation of origin may ignore or disclaim responsibility
to accept their return.
Ibid. The interference with
sensitive foreign relations becomes even more acute where hostility
or tension characterizes the relationship, for other countries can
use the fact of judicially mandated release to their strategic
advantage, refusing the return of their nation-
712
als to force dangerous aliens upon us. One of the more alarming
aspects of the Court's new venture into foreign affairs management
is the suggestion that the district court can expand or contract
the reasonable period of detention based on its own assessment of
the course of negotiations with foreign powers. The Court says it
will allow the Executive to perform its duties on its own for six
months; after that, foreign relations go into judicially supervised
receivership.
The cases which the Court relies upon to support the imposition
of presumptions are inapposite. The rule announced in
Cheff
v.
Schnackenberg, 384 U. S. 373 (1966)"that
sentences exceeding six months for criminal contempt may not be
imposed by federal courts absent a jury trial"was based on the
definition of a "petty offense" that was still operable in the
United States Code, and was proper "under the peculiar power of the
federal courts to revise sentences in contempt cases."
Id.,
at 380. The majority can point to no similar statutory or judicial
source for its authority to create its own time-based rule in these
cases. It cites only an observation in a brief filed by the
Government in
United States v.
Witkovich, O. T. 1956,
No. 295, pp. 8-9, see
ante, at 701, relying, in turn, on
doubts expressed in a 1952 Senate Report concerning detention for
longer than six months under an Act with standards different from,
and far less precise than, those applicable here. In
County of
Riverside v.
McLaughlin, 500 U. S. 44 (1991), our
reasonableness presumption for delays of less than 48 hours between
an arrest and a probable-cause hearing was, as the majority
recognizes,
ante, at 701, based on the "Court of Appeals'
determination of the time required to complete those procedures."
500 U. S., at 57. Here, as far as we know, the 6-month period bears
no particular relationship to how long it now takes to deport any
group of aliens, or, for that matter, how long it took in the past
to remove. Zadvydas' case itself demonstrates that the repatriation
process may often take years to
713
negotiate, involving difficult issues of establishing
citizenship and the like. See Brief for Petitioner in No. 99-7791,
pp.17-20.
It is to be expected that from time to time a foreign power will
adopt a truculent stance with respect to the United States and
other nations. Yet the Court by its time limit, or presumptive time
limit, goes far to undercut the position of the Executive in
repatriation negotiations, thus ill serving the interest of all
foreign nationals of the country concerned. Law-abiding aliens
might wish to return to their home country, for instance, but the
strained relationship caused by the difficult repatriation talks
might prove to be a substantial obstacle for these aliens as
well.
In addition to weakening the hand of our Government, court
ordered release cannot help but encourage dilatory and obstructive
tactics by aliens who, emboldened by the Court's new rule, have
good reason not to cooperate by making their own repatriation or
transfer seem foreseeable. An alien ordered deported also has less
incentive to cooperate or to facilitate expeditious removal when he
has been released, even on a supervised basis, than does an alien
held at an Immigration and Naturalization Service (INS) detention
facility. Neither the alien nor his family would find any urgency
in assisting with a petition to other countries to accept the alien
back if the alien could simply remain in the United States
indefinitely.
The risk to the community posed by the mandatory release of
aliens who are dangerous or a flight risk is far from
insubstantial; the motivation to protect the citizenry from aliens
determined to be dangerous is central to the immigration power
itself. The Government cites statistical studies showing high
recidivism rates for released aliens. One Government Accounting
Office study cited by Congress in floor debates on the
Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat.
1214, put the figure as high as 77 percent. 142 Congo Rec. 7972
(1996); Brief for Respondents in
714
No. 99-7791, at 27, n. 13. It seems evident a criminal record
accumulated by an admitted alien during his or her time in the
United States is likely to be a better indicator of risk than
factors relied upon during the INS's initial decision to admit or
exclude. Aliens ordered deported as the result of having committed
a felony have proved to be dangerous.
Any suggestion that aliens who have completed prison terms no
longer present a danger simply does not accord with the reality
that a significant risk may still exist, as determined by the many
factors set forth in the regulations. See 8 CFR § 241.4(f) (2001).
Underworld and terrorist links are subtle and may be overseas,
beyond our jurisdiction to impose felony charges. Furthermore, the
majority's rationale seems to apply to an alien who flees
prosecution or escapes from custody in some other country. The fact
an alien can be deemed inadmissible because of fraud at the time of
entry does not necessarily distinguish his or her case from an
alien whose entry was legal. Consider, for example, a fugitive
alien who enters by fraud or stealth and resides here for five
years with significant ties to the community, though still
presenting a danger; contrast him with an alien who entered
lawfully but a month later committed an act making him removable.
Why the Court's rationale should apply to the second alien but not
the first is not apparent.
The majority cannot come to terms with these distinctions under
its own rationale. The rule the majority creates permits
consideration of nothing more than the reasonable foreseeability of
removal. See
ante, at 699-700. That standard is not only
without sound basis in the statutory structure, but also is not
susceptible to customary judicial inquiry. Cf.
INS v.
Aguirre-Aguirre, 526 U. S. 415, 425 (1999)
("The judiciary is not well positioned to shoulder primary
responsibility for assessing the likelihood and importance of such
diplomatic repercussions"). The majority does say that the release
of terrorists or other "special circumstances" might justify
"heightened deference to the judgments of the politi-
715
cal branches with respect to matters of national security."
Ante, at 696. Here the Court appears to rely on an
assessment of risk, but this is the very premise it finds
inadequate to sustain the natural reading of the statute. The Court
ought not to reject a rationale in order to deny power to the
Attorney General and then invoke the same rationale to save its own
analysis.
This rule of startling breadth invites potentially perverse
results. Because other nations may refuse to admit aliens who have
committed certain crimes-see,
e. g., Brief for Petitioner in
No. 99-7791, at 19 ("Lithuanian law precludes granting of
citizenship to persons who, before coming to Lithuania, have been
sentenced in another state to imprisonment for a deliberate crime
for which criminal liability is imposed by the laws of the Republic
of Lithuania" (citations and internal quotation marks
omitted))-often the aliens who have committed the most serious
crimes will be those who may be released immediately under the
majority's rule. An example is presented in the case of Saroeut
Ourk, a Cambodian alien determined to be removable and held pending
deportation. See
Ourk v.
INS, No. 00-35645
(CA9, Sept. 18, 2000), cert. pending, No. 00-987. Ourk was
convicted of rape by use of drugs in conjunction with the kidnaping
of a 13-year-old girl; after serving 18 months of his prison term,
he was released on parole but was returned to custody twice more
for parole violations. Pet. for Cert. in No. 00-987, pp. 4-5. When
he was ordered deported and transferred to the custody of the INS,
it is no surprise the INS determined he was both a flight risk and
a danger to the community. Yet the Court of Appeals for the Ninth
Circuit concluded, based on its earlier decision in Kim Ho Ma v.
Reno,
208 F.3d
815 (2000), that Ourk could no longer be held pending
deportation, since removal to Cambodia was not reasonably
foreseeable. App. to Pet. for Cert. in No. 00-987, pp. 3a-4a. See
also
Phetsany v.
INS, No. 00-16286
(CA9, Sept.
18,2000), cert. pending, No. 00-986 (requiring release of a native
and
716
citizen of Laos convicted of attempted, premeditated murder);
Mounsaveng v.
INS, No. 00-15309
(CA9, Aug.
11,2000), cert. pending, No. 00-751* (releasing a citizen of Laos
convicted of rape of a 15-year-old girl and reckless endangerment
for involvement in a fight in which gunshots were fired);
Lim v.
Reno, No. 99-36191
(CA9, Aug. 14,
2000), cert. pending, No. 00-777 (releasing a Cambodian convicted
of rape and robbery);
Phuong Phuc Le v.
INS, No.
00-16095
(CA9, Sept. 18,2000), cert. pending, No. 00-1001
(releasing a Vietnamese citizen convicted of voluntary manslaughter
in a crime involving the attempted murder of two other persons).
Today's result will ensure these dangerous individuals, and
hundreds more like them, will remain free while the Executive
Branch tries to secure their removal. By contrast, aliens who
violate mere tourist visa requirements,
ante, at 691, can in
the typical case be held pending deportation on grounds that a
minor offender is more likely to be removed. There is no reason to
suppose Congress intended this odd result.
The majority's rule is not limited to aliens once lawfully
admitted. Today's result may well mandate the release of those
aliens who first gained entry illegally or by fraud, and, indeed,
is broad enough to require even that inadmissible and excludable
aliens detained at the border be set free in our community. In
Rosales-Garcia v.
Holland, 238
F.3d 704, 725 (CA6 2001), for example, Rosales, a Cuban
citizen, arrived in this country during the 1980 Mariel boatlift.
Id., at 707. Upon arrival in the United States, Rosales was
released into the custody of a relative under the Attorney
General's authority to parole illegal aliens, see 8 U. S. C. §
1182(d)(5)(A), and there he committed multiple crimes for which he
was convicted and imprisoned. 238 F. 3d, at 707708. While serving a
sentence for burglary and grand larceny, Rosales escaped from
prison, another of the offenses
*[REPORTER'S NOTE: See
post, p. 943.]
717
for which he ultimately served time.
Id., at 708. The INS
eventually revoked Rosales' immigration parole, ordered him
deported, and held him pending deportation, subject to periodic
consideration for parole under the Cuban Review Plan. See 8 CFR §
212.12(g)(2) (2001). In reasoning remarkably similar to the
majority's, the Court of Appeals for the Sixth Circuit held that
the indefinite detention of Rosales violated Fifth Amendment due
process rights, because "the government has offered ... no credible
proof that there is any possibility that Cuba may accept Rosales's
return anytime in the foreseeable future." 238 F. 3d, at 725. This
result-that Mariel Cubans and other illegal, inadmissible aliens
will be released notwithstanding their criminal history and obvious
flight risk-would seem a necessary consequence of the majority's
construction of the statute.
The majority's confidence that the Judiciary will handle these
matters "with appropriate sensitivity,"
ante, at 696, 700,
allows no meaningful category to confine or explain its own
sweeping rule, provides no justification for wresting this
sovereign power away from the political branches in the first
place, and has no support in judicially manageable standards for
deciding the foreseeability of removal.
It is curious that the majority would approve of continued
detention beyond the 90-day period, or, for that matter, during the
90-day period, where deportation is not reasonably foreseeable. If
the INS cannot detain an alien because he is dangerous, it would
seem irrelevant to the Constitution or to the majority's
presumption that the INS has detained the alien for only a little
while. The reason detention is permitted at all is that a removable
alien does not have the same liberty interest as a citizen does.
The Court cannot bring itself to acknowledge this established
proposition. Likewise, it is far from evident under the majority's
theory why the INS can condition and supervise the release of
aliens who are not removable in the reasonably foreseeable future,
or why "the alien may no doubt be returned to custody upon
718
a violation of those conditions."
Ante, at 700. It is
true that threat of revocation of supervised release is necessary
to make the supervised release itself effective, a fact even
counsel for Zadvydas acknowledged. Brief for Petitioner in No.
99-7791, at 20-21. If that is so, however, the whole foundation for
the Court's position collapses.
The Court today assumes a role in foreign relations which is
unprecedented, unfortunate, and unwise. Its misstep results in part
from a misunderstanding of the liberty interests these aliens
retain, an issue next to be discussed.
II
The aliens' claims are substantial; their plight is real.
They face continued detention, perhaps for life, unless it is
shown they no longer present a flight risk or a danger to the
community. In a later case the specific circumstances of a
detention may present a substantial constitutional question. That
is not a reason, however, for framing a rule which ignores the law
governing alien status.
As persons within our jurisdiction, the aliens are entitled to
the protection of the Due Process Clause. Liberty under the Due
Process Clause includes protection against unlawful or arbitrary
personal restraint or detention. The liberty rights of the aliens
before us here are subject to limitations and conditions not
applicable to citizens, however. See,
e. g.,
Mathews
v.
Diaz, 426 U.
S. 67, 79-80 (1976) ("In the exercise of its broad power over
naturalization and immigration, Congress regularly makes rules that
would be unacceptable if applied to citizens"). No party to this
proceeding contests the initial premise that the aliens have been
determined to be removable after a fair hearing under lawful and
proper procedures. Section 1229a sets forth the proceedings
required for deciding the inadmissibility or removability of an
alien, including a hearing before an immigration judge, at which
the INS carries "the burden of establishing by clear and convincing
evidence that ... the alien is deportable." 8
719
u. S. C. § 1229a(c)(3)(A); see also
Berenyi v.
District Director, INS, 385 U. S. 630, 636 (1967)
("When the Government seeks to ... deport a resident alien and send
him from our shores, it carries the heavy burden of proving its
case by clear, unequivocal, and convincing evidence" (internal
quotation marks and footnotes omitted)). Aliens ordered removed
pursuant to these procedures are given notice of their right to
appeal the decision, 8 U. S. C. § 1229a(c)(4), may move the
immigration judge to reconsider, § 1229a(c)(5), can seek
discretionary cancellation of removal, § 1229b, and can obtain
habeas review of the Attorney General's decision not to consider
waiver of deportation. See
INS v.
St. Cyr, ante, at
314. As a result, aliens like Zadvydas and Ma do not arrive at
their removable status without thorough, substantial procedural
safeguards.
The majority likely is correct to say that the distinction
between an alien who entered the United States, as these aliens
did, and one who has not, "runs throughout immigration law."
Ante, at 693. The distinction is not so clear as it might
seem, however, and I doubt it will suffice to confine the rationale
adopted by the majority. The case which often comes to mind when
one tests the distinction is
Shaughnessy v.
United States
ex rel. Mezei, 345 U. S. 206 (1953),
where the Court considered the situation of an alien denied entry
and detained on Ellis Island. The detention had no foreseeable end,
for though Mezei was inadmissible to the United States it seemed no
other country would have him.
Id., at 209. The case
presented a line-drawing problem, asking whether the alien was in
our country; or whether his situation was the same as if he were
still on foreign shores; or whether he fell in a legal category
somewhere in between, though if this were true, it still would not
be clear how to resolve the case. The Court held the alien had no
right to a hearing to secure his release.
Id., at 212-213.
(Approximately 17 months after this Court denied Mezei relief, the
Attorney General released him on parole. It appears Mezei
720
never returned to INS custody, though he was not admitted to the
United States as a citizen or lawful permanent resident. See
Weisselberg, The Exclusion and Detention of Aliens: Lessons From
the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933,
979-984 (1995).)
Here the majority says the earlier presence of these aliens in
the United States distinguishes the cases from
Mezei. For
reasons given here it is submitted the majority is incorrect in its
major conclusions in all events, so even if it were assumed these
aliens are in a class with more rights than
Mezei, it makes
no difference. For purposes of this dissent it is not necessary to
rely upon
Mezei.
That said, it must be made clear these aliens are in a position
far different from aliens with a lawful right to remain here. They
are removable, and their rights must be defined in accordance with
that status. The due process analysis must begin with a "careful
description of the asserted right."
Reno v.
Flores,
507 U. S. 292,
302 (1993). We have "long held that an alien seeking initial
admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to
admit or exclude aliens is a sovereign prerogative."
Landon
v.
Plasencia, 459 U. S. 21, 32 (1982).
The same is true for those aliens like Zadvydas and Ma, who face a
final order of removal. When an alien is removable, he or she has
no right under the basic immigration laws to remain in this
country. The removal orders reflect the determination that the
aliens' ties to this community are insufficient to justify their
continued presence in the United States. An alien's admission to
this country is conditioned upon compliance with our laws, and
removal is the consequence of a breach of that understanding.
It is true the Court has accorded more procedural protections to
those aliens admitted to the country than those stopped at the
border, observing that "a continuously present alien is entitled to
a fair hearing when threatened with
721
deportation."
Ibid.; Mezei, supra, at 212 ("[A]liens who
have once passed through our gates, even illegally, may be expelled
only after proceedings conforming to traditional standards of
fairness encompassed in due process of law .... But an alien on the
threshold of initial entry stands on a different footing: 'Whatever
the procedure authorized by Congress is, it is due process as far
as an alien denied entry is concerned'" (quoting
United States
ex rel. Knauff v.
Shaughnessy, 338 U. S. 537, 544
(1950))). Removable and excludable aliens are situated differently
before an order of removal is entered; the removable alien, by
virtue of his continued presence here, possesses an interest in
remaining, while the excludable alien seeks only the privilege of
entry.
Still, both removable and inadmissible aliens are entitled to be
free from detention that is arbitrary or capricious. Where
detention is incident to removal, the detention cannot be justified
as punishment nor can the confinement or its conditions be designed
in order to punish. See
Wong Wing v.
United States,
163 U. S. 228
(1896). This accords with international views on detention of
refugees and asylum seekers. See Report of the United Nations
Working Group on Arbitrary Detention, U. N. Doc.
E/CNA/2000/4 (Dec. 28, 1999); United Nations High
Commissioner for Refugees, Guidelines on Applicable Criteria and
Standards Relating to the Detention on Asylum-Seekers (Feb. 10,
1999). It is neither arbitrary nor capricious to detain the aliens
when necessary to avoid the risk of flight or danger to the
community.
Whether a due process right is denied when removable aliens who
are flight risks or dangers to the community are detained turns,
then, not on the substantive right to be free, but on whether there
are adequate procedures to review their cases, allowing persons
once subject to detention to show that through rehabilitation, new
appreciation of their responsibilities, or under other standards,
they no longer present special risks or danger if put at large. The
proce-
722
dures to determine and to review the status-required detention
go far toward this objective.
By regulations, promulgated after notice and comment, the
Attorney General has given structure to the discretion delegated by
the INA in order to ensure fairness and regularity in INS detention
decisions. First, the INS provides for an initial postcustody
review, before the expiration of the gO-day removal period, at
which a district director conducts a record review. 8 CFR § 241.4
(2001). The alien is entitled to present any relevant information
in support of release, and the district director has the discretion
to interview the alien for a personal evaluation. § 241.4(h)(1). At
the end of the gO-day period, the alien, if held in custody, is
transferred to a postorder detention unit at INS headquarters,
which in the ordinary course will conduct an initial custody review
within three months of the transfer. § 241.4(k)(2)(ii). If the INS
determines the alien should remain in detention, a twomember panel
of INS officers interviews the alien and makes a recommendation to
INS headquarters. §§ 241.4(i)(1)-(3). The regulations provide an
extensive, nonexhaustive list of factors that should be considered
in the recommendation to release or further detain. Those include:
"[t]he nature and number of disciplinary infractions"; "the
detainee's criminal conduct and criminal convictions, including
consideration of the nature and severity of the alien's
convictions, sentences imposed and time actually served, probation
and criminal parole history, evidence of recidivism, and other
criminal history"; "psychiatric and psychological reports
pertaining to the detainee's mental health"; "[e]vidence of
rehabilitation"; "[f]avorable factors, including ties to the United
States such as the number of close relatives"; "[p]rior immigration
violations and history"; "[t]he likelihood that the alien is a
significant flight risk or may abscond to avoid removal, including
history of escapes"; and any other probative information. §
241.4(f). Another review must occur within one year, with mandatory
evaluations each year thereafter; if the alien re-
723
quests, the INS has the discretion to grant more frequent
reviews. § 241.4(k)(2)(iii). The INS must provide the alien 30-days
advance, written notice of custody reviews; and it must afford the
alien an opportunity to submit any relevant materials for
consideration. § 241.4(i)(3)(ii). The alien may be assisted by a
representative of his choice during the review, §§ 241.4(i)(3)(i),
(ii), and the INS must provide the alien with a copy of its
decision, including a brief statement of the reasons for any
continued detention, § 241.4(d).
In this context the proper analysis can be informed by our cases
involving parole-eligibility or parole-revocation determinations.
In
Morrissey v.
Brewer, 408 U. S. 471 (1972), for
example, we held some amount of process was due an individual whose
parole was revoked, for "the liberty of a parolee, although
indeterminate, includes many of the core values of unqualified
liberty."
Id., at 482; see also
Board of Pardons v.
Allen, 482 U.
S. 369 (1987). We rejected in
Morrissey the suggestion
that the State could justify parole revocation "without some
informal procedural guarantees," 408 U. S., at 483, but "[g]iven
the previous conviction and the proper imposition of conditions,"
we recognized that "the State has an overwhelming interest in being
able to return the individual to imprisonment without the burden of
a new adversary criminal trial,"
ibid. We held the review
process need not include a judicial officer or formal court
proceeding, but could be conducted by a neutral administrative
official.
Id., at 486.
While the majority expresses some concern that the regulations
place the burden on the alien to show he is no longer dangerous,
that question could be adjudicated in a later case raising the
issue. It should be noted the procedural protection here is real,
not illusory; and the criteria for obtaining release are far from
insurmountable. Statistics show that between February 1999 and
mid-November 2000 some 6,200 aliens were provided custody reviews
before expiration of the 90-day removal period, and of those aliens
about 3,380
724
were released. 65 Fed. Reg. 80285 (2000); Reply Brief for
Petitioners in No. 00-38, p. 15. As a result, although the alien
carries the burden to prove detention is no longer justified, there
is no showing this is an unreasonable burden.
Like the parolee in
Morrissey, who was aware of the
conditions of his release, the aliens in the instant cases have
notice, constructive or actual, that the INA imposes as a
consequence of the commission of certain crimes not only
deportation but also the possibility of continued detention in
cases where deportation is not immediately feasible. And like the
prisoner in
Board of Pardons v.
Allen, who sought
federalcourt review of the discretionary decision denying him
parole eligibility, removable aliens held pending deportation have
a due process liberty right to have the INS conduct the review
procedures in place. See 482 U. S., at 381. Were the INS, in an
arbitrary or categorical manner, to deny an alien access to the
administrative processes in place to review continued detention,
habeas jurisdiction would lie to redress the due process violation
caused by the denial of the mandated procedures under 8 CFR § 241.4
(2001).
This is not the posture of the instant cases, however. Neither
Zadvydas nor Ma argues that the Attorney General has applied the
procedures in an improper manner; they challenge only the Attorney
General's authority to detain at all where removal is no longer
foreseeable. The Government has conceded that habeas jurisdiction
is available under 28 U. S. C. § 2241 to review an alien's
challenge to detention following entry of a final order of
deportation, Brief for Respondents in No. 99-7791, at 9-10, n. 7;
Tr. of Oral Arg. 59, although it does not detail what the nature of
the habeas review would be. As a result, we need not decide today
whether, and to what extent, a habeas court could review the
Attorney General's determination that a detained alien continues to
be dangerous or a flight risk. Given the undeniable deprivation of
liberty caused by the detention, there might be substantial
questions concerning the severity nec-
725
essary for there to be a community risk; the adequacy of
judicial review in specific cases where it is alleged there is no
justification for concluding an alien is dangerous or a flight
risk; and other issues. These matters are not presented to us
here.
In all events, if judicial review is to be available, the
inquiry required by the majority focuses on the wrong factors.
Concepts of flight risk or future dangerousness are manageable
legal categories. See,
e. g., Kansas v.
Hendricks,
521 U. S. 346 (1997);
Foucha v.
Louisiana,
504 U. S. 71
(1992). The majority instead would have the Judiciary review the
status of repatriation negotiations, which, one would have thought,
are the paradigmatic examples of nonjusticiable inquiry. See
INS v.
Aguirre-Aguirre, 526 U. S., at 425. The
inquiry would require the Executive Branch to surrender its primacy
in foreign affairs and submit reports to the courts respecting its
ongoing negotiations in the international sphere. High officials of
the Department of State could be called on to testify as to the
status of these negotiations. The Court finds this to be a more
manageable, more appropriate role for the Judiciary than to review
a single, discrete case deciding whether there were fair procedures
and adequate judicial safeguards to determine whether an alien is
dangerous to the community so that long-term detention is
justified. The Court's rule is a serious misconception of the
proper judicial function, and it is not what Congress enacted.
For these reasons, the Court should reverse the judgment of the
Court of Appeals for the Ninth Circuit and affirm the judgment of
the Court of Appeals for the Fifth Circuit. I dissent.
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