A. Opinion Following Remand
We previously issued an opinion in this case, which is reported at
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 of United States in United States v. Witkovich, O.T.1956, No. 295, pp. 89. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6-month 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 post-removal confinement grows, what counts*1099 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.” Id.
In response to the Court’s order of remand, we now reissue our opinion with the following clarification: Our conclusion that there was no likelihood of Ma’s removal in the reasonably foreseeable future was based, and is based, not only on the fact that there was no “extant or pending” repatriation agreement but also on the fact that there was an insufficient showing that future negotiations were likely to lead to a repatriation agreement within the reasonably foreseeable future. In reaching our conclusion we careMly reviewed the record, including the findings of the District Court. The District Court, after full briefing by the parties and the State Department, found that the government’s efforts to effect some form of repatriation agreement with Cambodia, Ma’s native land, were in an embryonic stage, that the efforts had met with no response from the Cambodian government, and that by our government’s own admission, the negotiation of a repatriation agreement with Cambodia depended upon the status of similar negotiations with Vietnam. The District Court further found that discussions with Vietnam had been conducted over the past four or five years without any resolution and that two judges in the same district court had recently determined that the Vietnam discussions had no realistic chance of success. The District Court concluded that there was no “realistic chance” that Ma would be removed and that his detention was “indefinite.” The District Court’s decision was issued on September 29,1999, well after the six-month presumptively reasonable period established by the Court in Zadvydas v. Davis, and in fact, at a time when Ma had been detained for more than 11 months following his final order of removal. In our prior opinion, we affirmed, and we reaffirm here, the District Court’s finding that, under all the circumstances, there was no likelihood of Ma’s removal in the foreseeable future.
In light of the above clarification, and to make our earlier holding clear, we amend our opinion by deleting the sentence,
In the absence of a repatriation agreement, extant or pending, we must affirm the district court’s finding that there is no reasonable likelihood that the INS will be able to accomplish Ma’s removal.
We substitute in its place the following sentence:
Under these circumstances, we affirm the district court’s finding that there is no reasonable likelihood that the INS will be able to accomplish Ma’s removal in the reasonably foreseeable future.
Immediately after the above sentence, we add the following sentence: “Ma’s detention has already lasted well beyond the six-month ‘presumptively reasonable’ period established by the Supreme Court in Zadvydas.”
In addition, we amend our opinion to incorporate throughout the 6-month “presumptively reasonable” period adopted by the Supreme Court in Zadvydas by adopting the changes described below. We substitute the phrase “for more than a ‘reasonable period’ beyond the removal period” for the phrase “beyond that statutory removal period” at the end of the sentence,
More specifically, in cases like Ma’s, in which there is no reasonable likelihood that the alien will be removed in the reasonably foreseeable future, we hold*1100 that it may not detain the alien beyond that statutory removal period.
We add the following footnote at the end of that sentence,
Footnote 5. In our original opinion, we indicated that the determination of a “reasonable period” beyond the 90-day statutory removal period would be unique to the circumstances of each individual case. However, in Zadvydas, 121 S.Ct. at 2505, the Supreme Court read the statute to permit a “presumptively reasonable” detention period of six months after a final order of removal— that is, three months after the statutory removal period has ended. Thereafter, as the Court stated, “for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink.” Id. Accordingly, all references in this opinion to the “reasonable period” or “reasonable time period” beyond the 90-day statutory period shall be understood to incorporate the additional three months, and thereby to refer to a six-month “presumptively reasonable” detention period.
We substitute the phrase “for more than a reasonable period beyond that removal period” for the phrase “beyond the statutory removal period” in the following sentence,
In cases in which an alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien’s return in the reasonably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien beyond the statutory removal period.
We add the following internal cross-reference after that sentence: “See n. 5, supra.” We substitute the phrase “that time”for the phrase “that statutory removal period” in the sentence,
We believe the construction of § 1231(a)(6) we adopt — that the INS may detain aliens who have entered the country but have been ordered removed only for “a reasonable time” beyond the ninety day statutory removal period, and specifically, that such aliens may not be detained beyond that statutory removal period if there is no reasonable likelihood that their country of origin will permit their return in the reasonably foreseeable future — to be the most plausible reading of the statute.
We substitute the phrase “presumptively reasonable detention period” for the phrase “statutory removal period. 8 U.S.C. § 1231(a)(1)(A),” in the sentence,
Because, here, there is no repatriation agreement and no. demonstration of a reasonable likelihood that one will be entered into in the near future, we believe it to be not only the prudent but the correct interpretation of the statute to hold that Ma and others similarly situated aliens must be released, under supervision, at the end of the statutory removal period. 8 U.S.C. § 1231(a)(1)(A).
Finally, we delete the sentences (and the accompanying footnote),
Here, we need not address all the conceivable situations that could arise to delay or preclude removal. We need hold only that where it is reasonably likely that an alien who has entered the United States cannot be removed in the reasonably foreseeable future, detention beyond the removal period is not justified.
and substitute in their place:
The Supreme Court has now held that there shall be a presumptively reasonable period of six months during which*1101 an alien may be detained pending removal. After this six-month period, the alien can no longer be held if removal is not likely to occur in the reasonably foreseeable future. The Court also concluded that what counts as the “reasonably foreseeable future” diminishes as the time of confinement increases. Zadvydas,121 S.Ct. at 2505 .
Accordingly we reinstate our opinion, as amended, and set it forth below.
B. Reinstated Opinion (as amended)
Petitioner Kim Ho Ma is an alien who left his native land, Cambodia, as a refugee at the age of two and has resided in the United States as a legal permanent resident since he was six. At the age of seventeen he was involved in a gang-related shooting, and was convicted of manslaughter. After completing his prison sentence some two years later, he was taken into INS custody and ordered removed because of that conviction. However, the INS has been unable to remove him, and hundreds of others like him, because Cambodia does not have a repatriation agreement with the United States and therefore will not permit Ma’s return.
Ma challenged his detention by filing a petition for habeas corpus, under 28 U.S.C. § 2241, in the District Court for the Western District of Washington. That court ruled that Ma’s continued detention violates his substantive due process rights under the Fifth Amendment.
I.
Petitioner Kim Ho Ma’s family fled Cambodia in 1979 and took Ma, who was then two years old, with them. After spending over five years in refugee camps, Ma’s family lawfully entered the United States in 1985 as refugees. Ma’s status was adjusted to that of a lawful permanent resident in 1987. In 1996, he was convicted, by a jury, of first degree manslaughter following a gang-related shooting. He was sentenced to 38 months in prison, but eventually served only 26 after receiving credit for good behavior. He was tried as an adult, although he was only seventeen years of age at the time of the crime. Although the INS repeatedly refers to Ma’s criminal record, this was his only criminal conviction.
Ma’s conviction made him removable as an alien convicted of certain crimes under 8 U.S.C. § 1227(a)(2). Because he was released by the state authorities after April 1, 1997, the INS’s authority to take him into custody was governed by the permanent custody rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (codified at 8 U.S.C. § 1231). The INS took Ma into custody following his release from prison and initiated removal proceedings against him. An immigration judge found Ma removable, and furthermore found him ineligible for asylum or withholding of deportation because of his conviction. Ma appealed this ruling to the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge’s decision. Although Ma’s order of removal became final on October 26, 1998, the INS could not remove him within the ninety day period during which it is authorized to do so because the United States had, and still has, no repatriation agreement with Cambodia. As a result, Ma remained in detention until he filed this petition for a writ of habeas corpus, which was granted by the district court on September 29, 1999. He is now twenty-two and has been in custody (and, but for the district court’s decision, would have been incarcerated) for nearly five years, although his sentence accounts for only a little over two years of that period.
In May 1999, over six months after Ma’s final removal order (and after his habeas petition was filed), the INS, by letter, requested travel documents for Ma from the Cambodian government.
On September 30, 1999, pursuant to additional internal regulations, the INS again reviewed its decision to continue detaining Ma.
II.
Although the bulk of the parties’ arguments, as well as the district court’s ruling, address the constitutionality of the INS’s detention policy, we must first determine whether Congress provided the INS with the authority to detain Ma indefinitely, as the Attorney General contends.
In general, after an alien is found removable, the Attorney General is required to remove that alien within ninety days after the removal order becomes administratively final.
Under the statute, aliens who cannot be removed at the end of ninety days fall into two groups. Those in the first group must be released subject to supervisory regulations that require them, among other things, to appear regularly before an immigration officer, provide information to that official, notify INS of any change in their employment or residence within 48 hours, submit to medical and psychiatric testing, and comply with substantial restrictions on their travel. 8 U.S.C. § 1231(a)(3). Those in the second group “may be detained beyond the removal period” and, if released, shall be subject to the same supervisory provisions applicable to aliens in the first group. 8 U.S.C. § 1231(a)(6).
INS argues that its authority to “detain beyond the removal period” gives it the authority to detain indefinitely aliens who fall in the second group and who cannot be removed in the reasonably foreseeable future.
We hold that Congress did not grant the INS authority to detain indefinitely aliens who, like Ma, have entered the United States and cannot be removed to their native land pursuant to a repatriation agreement. To the contrary, we construe the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which an alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien’s return in the reasonably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien for more than a reasonable period beyond that removal period. See n. 5, supra. Rather, the alien must be released subject to the supervisory authority provided in the statute.
We adopt our construction of the statute for several reasons. First, and most important, the result we reach allows us to avoid deciding whether or not INS’s indefinite detention policy violates the due process guarantees of the Fifth Amendment. Second, our reading is the most reasonable one — it better comports with the language of the statute and permits us to avoid assuming that Congress intended a result as harsh as indefinite detention in the absence of any clear statement to that effect. Third, reading an implicit “reasonable time” limitation into the statute is consistent with our case law interpreting a similar provision in a prior immigration statute. Finally, the interpretation we adopt is more consonant with international law.
The Supreme Court has long held that courts should interpret statutes in a manner that avoids deciding substantial constitutional questions. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
In the immigration context, courts have often read limitations into statutes that appeared to confer broad power on immigration officials in order to avoid constitutional problems. For example, in United States v. Witkovich,
We followed Witkovich in Romero v. INS,
Of course, as the Supreme Court has noted repeatedly when formulating the canon of constitutional avoidance, the rule applies when the constitutional issue at hand is a substantial one.
It is true that aliens 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 ....
Neither respondent’s harborage on Ellis Island nor his prior residence here transforms this into something other than an exclusion proceeding.
Id. at 212-13,
We followed Mezei in Barrera-Echavarria, which involved a Mariel Cuban who was detained while excluded from the U.S.
*1108 The Supreme Court has consistently recognized that our immigration laws have long made a distinction between those aliens who have come to óur shores seeking admission ... and those who are within the United States after an entry, irrespective of its legality. In the latter instance, the Court has recognized additional rights and privileges not extended to those in the former category.
Barrera-Echavarria,
Noncitizens who are outside United States territories enjoy very limited protections under the United States Constitution. [citing United States v. Verdugo-Urquidez,494 U.S. 259 ,110 S.Ct. 1056 ,108 L.Ed.2d 222 (1990) and Johnson v. Eisentrager ] Because excludable aliens are deemed under the entry doctrine not to be present on United States territory, a holding that they have no substantive right to be free from immigration detention reasonably follows.
Barrera-Echavarria,
Thus, it is not surprising that Barrera-Echavarria upheld as constitutional the long-term detention of aliens who had not entered the United States, legally or illegally (although they had been paroled into this country). As we stated in that case, it is “not settled” that excludable aliens have any constitutional rights at all, id. at 1449, so it is clear that they cannot prevail where the government refuses to admit them.
The INS also argues that Barrerar-Echavarria and Mezei control the result here because, for constitutional purposes, an alien ordered removed has no further right to be here and therefore stands on essentially the same footing as an excluda-ble alien.
We believe the construction of § 1231(a)(6) we adopt — that the INS may detain aliens who have entered the country but have been ordered removed only for “a reasonable time” beyond the ninety day statutory removal period, and specifically, that such aliens may not be detained beyond that time if there is no reasonable likelihood that their country of origin will permit their return in the reasonably foreseeable future — to be the most plausible reading of the statute. However, we note that, in order to avoid the substantial constitutional concerns presented by the INS’s interpretation, we could adopt a strained construction of the statute, one that would not otherwise constitute sound statutory construction. As one of our learned colleagues recently explained,
[Statutory construction and constitutional narrowing ... are, in fact, very different animals.... Constitutional narrowing seeks to add a constraint to the statute that its drafters plainly had not meant to put there; it is akin to partial invalidation of the statute. See, e.g., Regan v. Time, Inc.,468 U.S. 641 , 652-654,104 S.Ct. 3262 ,82 L.Ed.2d 487 (1984). In performing the former task we may not add anything to the statute that is not already there ... in performing the latter function, we must do precisely that.... In performing our constitutional narrowing function, we may come up with any interpretation we have reason to believe Congress would not have rejected.
United States v. X-Citement Video, Inc.,
IV.
The interpretation we give section 1231(a)(6) is clearly the most reasonable one. The provision that the INS may hold individuals “beyond” a specified time demonstrates Congress’s intent that the otherwise applicable time limit not be deemed absolute in all cases, and that the agency have some flexibility in instances in which additional time may be useful. It does not demonstrate an intent to give the INS any greater authority than that — and certainly not an intent to permit the agency to hold people in detention for the remainder of their lives. Such is surely the case with respect to aliens who have entered the country and are generally entitled to the protections of our Constitution. It would indeed be surprising were Congress to attempt to authorize permanent or indefinite detention of such persons simply by providing that they may be held beyond a ninety day period. Some greater degree of specificity or demonstration of Congres
To sustain the INS’ indefinite detention theory we would be required to read far more into the statute than its language implies. In the simplest terms, to say that the INS may hold persons beyond a particular date does not answer the question “for how long?”. The proper reading, we conclude, is that Congress intended only that the short statutory period during which detention is ordinarily authorized not serve as an absolute barrier to a reasonable extension of time when circumstances render an additional period necessary in order to accomplish the statutory purpose — the removal of the alien. Where no removal in the reasonably foreseeable future is possible, however, the statutory language, properly construed, does not authorize indefinite detention of such aliens. Because, here, there is no repatriation agreement and no demonstration of a reasonable likelihood that one will be entered into in the near future, we believe it to be not only the prudent but the correct interpretation of the statute to hold that Ma and others similarly situated aliens must be released, under supervision, at the end of the presumptively reasonable detention period.
V.
Our conclusion that a “reasonable time” limitation is implicit in the statute is supported by a venerable line of Ninth Circuit cases that held that a predecessor provision must be construed as allowing only for detention “reasonably” beyond the removal period.
Prior to 1952, the detention of aliens pending deportation was governed by the Immigration Act of 1917. That statute set no time limit to accomplish a deportation. The Act provided simply that deportable aliens should be “taken into custody and deported.”
We recognized the continuing vitality of this rule in a case applying the 1917 Act that we decided in 1954. Spector v. Landon,
No cases have been found by counsel holding that a deportation warrant becomes invalid or unenforceable through mere lapse of time.... There are a number of decisions in habeas corpus to the effect that the right to hold the alien in custody under a deportation warrant persists for no more than a reasonable period. But such holdings lend no color to the contention made here.
Id. (emphasis added) (citations omitted). Thus, even as we denied Spector’s claim, we recognized that the 1917 Act did not authorize indefinite detention pending deportation even though the statute did not, by its terms, place any temporal limit on the government’s authority; we read the statute as containing an implicit provision that detention was authorized only for a “reasonable period.”
While these older cases did not interpret a statute exactly like the one we consider today, because the 1917 Act made no distinction between aliens whose release following the removal period was required and aliens who could be detained following that period, both the 1917 statute and the current law provide for custody pending deportation and set forth no specific time limitations as to the period of detention. Although these older cases do not make their reasoning entirely explicit, they appear to rely on the principle that, when faced with the absence of an express time limitation, courts should ordinarily not assume that Congress intended a result as harsh and constitutionally dubious as indefinite detention. That principle seems as valid today as it was under the 1917
VI.
In interpreting the statute to include a reasonable time limitation, we are also influenced by amicus curiae Human Rights Watch’s argument that we should apply the well-established Charming Betsy rule of statutory construction which requires that we generally construe Congressional legislation to avoid violating international law. Weinberger v. Rossi,
We recently recognized that “a clear international prohibition” exists against prolonged and arbitrary detention. Martinez v. City of Los Angeles,
In the present case, construing the statute to authorize the indefinite detention of removable aliens might violate international law. In Martinez,
In the face of these compelling statutory arguments, we do not read § 1281(a)(6) as authorizing the indefinite detention of removable aliens. Rather, we hold that the statute authorizes the Attorney General to detain removable aliens only for a reasonable time beyond the ninety day removal period. While we could reach this construction of the statute simply by invoking the doctrine of constitutional avoidance, it is not necessary to rest our decision on that legal principle. As the above discussion makes clear, ordinary tenets of statutory construction lead us to that same result. What constitutes a reasonable time will depend on the circumstances of the various cases. The Supreme Court has now held that there shall be a presumptively reasonable period of six months during which an alien may be detained pending removal. After this six-month period, the alien can no longer be held if removal is not likely to occur in the reasonably foreseeable future. The Court also concluded that what counts as the “reasonably foreseeable future” diminishes as the time of confinement increases. Zadvydas,
In Ma’s case, the district court did not err in concluding that there is not a reasonable likelihood that the INS will be able to remove Ma to Cambodia. Although the INS offered evidence that the State Department has submitted a proposal for a repatriation agreement to the Cambodian government, both sides agree that the United States has no functioning repatriation agreement with that country, that the Cambodian government does not presently accept the return of its nationals from the United States, and that it has not announced a willingness to enter into an agreement to do so in the foreseeable future, (or indeed at any time). Under these circumstances, we affirm the district court’s finding that there is no reasonable likelihood that the INS will be able to accomplish Ma’s removal in the reasonably foreseeable future.
We stress that our decision does not leave the government without remedies with respect to aliens who may not be detained permanently while awaiting a removal that may never take place. All aliens ordered released must comply with the stringent supervision requirements set out in 8 U.S.C. § 1231(a)(3). Ma will have to appear before an immigration officer periodically, answer certain questions, submit to medical or psychiatric testing as necessary, and accept reasonable restrictions on his conduct and activities, including severe travel limitations. More important, if Ma engages in any criminal activity during this time, including violation of his supervisory release conditions, he can be detained and incarcerated as part of the normal criminal process.
AFFIRMED.
Notes
. The caption, however, has been changed. John Ashcroft is substituted for his predecessor, Janet Reno, as Attorney General of the United States; and Robert S. Coleman, Jr. is substituted for his predecessor, Robert C. Smith, as District Director of the Immigration and Naturalization Service, Seattle, Washington. Fed. R.App. P. 43(c)(2).
. There are also many aliens from Laos and Vietnam who cannot be removed because our government has no repatriation agreement with those countries.
. In the district court in which Ma sought relief, over one hundred habeas corpus petitioners challenged their ongoing detention by the INS in cases similar to his. The district court designated five lead cases that presented issues common to all petitioners and directed the parties to brief and argue those issues before five district court judges. The five district court judges issued a joint order establishing a legal framework to apply in each individual case. A single judge then applied this ruling to Ma and held that he should be released. Similar cases involving a large number of habeas petitioners have arisen in Nevada, and the Central, Eastern, and Southern Districts of California.
. Although neither party has argued either that the district court lacked jurisdiction over Ma's constitutional claims or that this court lacks jurisdiction to hear this appeal, the INS argued at one point in its brief that the general federal habeas statute, 28 U.S.C. § 2241, does not provide jurisdiction to hear any claim of statutory error or abuse of discretion. However, our recent decision in Magana-Pizano v. INS,
. In our original opinion, we indicated that the determination of a "reasonable period" beyond the 90-day statutory removal period would be unique to the circumstances of each individual case. However, in Zadvydas,
. The Cambodian government denied the request, as it does all such requests, because of the absence of a repatriation agreement.
. Internal INS regulations (known as the "Pearson I” regulations) required that Ma’s case be reviewed before the end of the ninety day period. However, Ma received his custody review approximately 100 days after that period had run (190 days after his removal order became final).
. 8 C.F.R. § 241.4.
. The letter also stated that Ma’s case would be reviewed again six months from the date of the letter, on December 2, 1999. It also stated that Ma had the right to submit a request for redetermination of his custody status at any time.
.After Ma and the other four lead petitioners prevailed in district court, the INS implemented additional regulations, known as the "Pearson II” regulations, which provided for additional review of custody decisions. These regulations provide for review of the decisions of district directors by INS Headquarters, which was then done in this case.
. The INS sought to stay the district court's release order. The district court denied the order but granted the INS a temporary stay so that it might attempt to secure an emergency stay from this court. We denied the stay. The INS filed a second emergency stay request, pending appeal to the Supreme Court. We again denied the stay and ordered Ma released. He was released that evening. The INS then sought a stay from the Supreme Court. Justice O'Connor ordered a temporary stay pending a review by the whole Court. Ma surrendered to INS custody pending the Court's decision. The Court denied the INS’s stay request, and Ma was again ordered released.
. See 8 U.S.C. § 1231(a)(l)(A)-(B). If the removal order is stayed pending judicial review, the ninety day period begins running after the reviewing court's final order. 8 U.S.C. § 123l(a)(l)(B)(ii).
. See, e.g., Caranica v. Nagle,
. The sub-section provides in full that
[a]n 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).
. Although we recognize that, in general, the Attorney General’s interpretation of the immigration laws is entitled to substantial deference, INS v. Aguirre-Aguirre,
. Petitioner also contests the procedures used by INS when considering his requests for release, asserting that they violate procedural due process. Given our holding, we need not reach that constitutional question either.
. The Court has also described the canon as applying to "difficult,” "serious,” or "grave” constitutional issues. See, e.g., United States v. Winstar Corp.,
. The INS also makes repeated reference to Carlson v. London,
. Although the INS notes that the plaintiff in Mezei was previously a lawful resident of the U.S. for twenty-five years, the Court made clear that he was to be treated as an excluda-ble alien because of his long departure from the U.S., and could not have his status "assimilated” to that of a permanent resident. In doing so, the Court distinguished, on its facts, its then-recent decision in Kwong Hai Chew v. Colding,
.Barrera-Echavarria was paroled while excluded, committed numerous crimes, and thereafter was taken back into custody. Barrera-Echavarria,
. Amici Law Professors note in their brief that in its petition for rehearing en banc which led to the Barrera-Echavarria decision the INS relied on the fact that the petitioner was an alien seeking admission (rather than one who had entered).
. In Barrera-Echavarria, we concluded that the statutes there at issue, which applied only to the detention of excludable aliens, allowed for the long-term detention of such aliens, id. at 1445, and went on to hold that such detention is constitutional. There is no inconsistency between our statutory holding in Barrera-Echavarria and our statutory holding here. We found the statutory authority to hold Barrera-Echavarria for a prolonged period implicit in the history and structure of several provisions granting broad discretion to the Attorney General to parole excludable aliens into the country under certain circumstances. Id. at 1445-48. We noted that the parole of excludable aliens had always been the exception rather than the rule, and that releasing such aliens into the country pending deportation would run contrary to the basic statutory scheme precluding such entry. Id. at 1447. In the case before us, we consider the entirely different question of aliens who have already entered the country. Thus, unlike in Barrera-Echavarria, there is no longstanding statutory scheme that would be "upset” by barring prolonged detention here. Id. at 1446. Most important, because in Barrera-Echavarria the various statutory provisions at issue did not apply to the detention of aliens who had already entered the United States, there was no need to invoke the canon of constitutional avoidance. The constitutional result in Barrera-Echavarria was dictated by the Supreme Court's holding in Mezei regarding excludable aliens.
. The cases extending Fifth Amendment protection to aliens are fully consistent with our general jurisprudence granting significant constitutional protections to aliens within the territoiy of the United States. The Supreme Court has held that the Equal Protection Clause applies to aliens, Yick Wo v. Hopkins,
. The INS cites Fong Yue Ting v. United States,
.We note that the Fifth Circuit relied on the INS's argument in resolving the constitutional question we avoid today, holding that long-term detention of removable aliens who have been ordered deported does not violate substantive due process. Zadvydas v. Underdown,
. The INS also argues that all immigration-related decisions are entitled to substantial deference under the plenary power, citing Reno v. Flores,
. In the prior statute, Congress uséd language prohibiting release (subject to some exceptions) rather than the language authorizing detention used here. See 8 U.S.C. § 1252(a)(2)(B) (1995) (stating that the "Attorney General may not release [deportable aliens convicted of an aggravated felony] ... either before or after a determination of de-portability [subject to some exceptions].”) (emphasis added). The two custody provisions that succeeded the 1995 version of this law (and preceded the current version) did not change this language in any way relevant to our analysis. The same "may not release ... either before or after” language was in both statutes. See AEDPA § 440(c); IIRIRA § 303(b)(3) (the transitional custody rule). The prohibitory language used there is obviously far stronger than the permissive language used in the new law. More important, however, Congress is familiar with time limitations in the detention and removal context, and could easily have authorized detention "without limitation” or "indefinitely” if it so desired. See, e.g., 8 U.S.C. § 1231(a)(1)(A); 1231(a)(1)(C); 1231(b)(2)(C); 1231(b)(2)(D); 1231(c)(3)(A); 1231(c)(3)(B) (all specifying various time periods in detention and removal context).
. See An Act To Regulate the Immigration of Aliens to, and the Residence of Aliens in, the United States, ch. 29, § 19, 39 Stat. 874, 889 (1917).
. Notably, the "reasonable time” allowed to effectuate deportation in such cases seems to have been quite short by contemporary standards. In Caranica the court held that a two month deadline was not an abuse of discretion,
. This court has held that within the domestic legal structure, international law is displaced by “a properly enacted statute, provided it be constitutional, even if that statute violates international law.” Alvarez-Mendez v. Stock,
. We note that our construction of the statute does not require us to "second-guess” or otherwise interfere with the foreign policy actions of the United States government. On the contrary, we have taken at face value the evidence submitted by a State Department officer regarding the status of the government's attempts to establish a repatriation agreement with Cambodia. He has candidly stated that he cannot predict when a repatriation agreement will be established and begin to function.
. We note that the regulations governing Ma's release state that he can be detained for violating them, and moreover that violations of supervisory release conditions are punishable by fine and/or imprisonment under 8 U.S.C. § 1253(b).