Kiyemba v. Obama

(6th patent counsel’s lack diligence, including ed.2006)), as counsel here stated rea- failing to alert the district court of the seeking sons for admission of the evidence. need for the testimony officer’s in advance

of trial. Even were defense counsel’s lack

of diligence support insufficient to the de- continuance, not,

nial it is States, v.

Natvig United 236 F.2d

(D.C.Cir.1956), the appellant record shows deprived opportunity present his defense other means. Giv- 555 F.3d 1022 relatively en the probative minimal value KIYEMBA, Friend, Jamal Next of Officer proposed Adams’s testimony, its al., Appellees et exclusion, error, assuming prejudi- was not cial, Similarly, card, rights as to the appellant cannot show abuse of discre- OBAMA, Barack H. President of the

tion in the denial of its given admission States, al., Appellants. United et purpose “the narrow evidence would served,” have United States v. Bailey, 319 08-5424, 08-5425, 08-5426, Nos. (D.C.Cir.2003). F.3d Appellant 08-5427, 08-5428, 08-5429. opportunity had the to cross examine the Appeals, United States Court of regarding

officers the on-the-scene confes- District Columbia Circuit. sion he making, given denied probative card’s minimal pur- value for Argued Nov. poses of supporting denial, appellant Decided Feb. show, error, cannot assuming prejudicial error. Any See id. error was harmless

under either a constitutional or non-consti-

tutional Chapman standard. See v. Cali-

fornia, Kotteakos

States, 750, 764-65, understood,

So appellant cannot show

the district court abused its direction much that, error,

less assuming preju- he was

diced. Consequently, presents this case

no speculate occasion for the court to would, fact, jury

how a viewed

proffered evidence, Op. at 1020-

21, or to impose a burden on defense coun-

sel to seek a statement of reasons from the

district court for its decision to exclude the

evidence, Op. at 1019. Such a burden is

unsupported by the precedent cited re-

garding general objection[s],” “mere atOp. (quoting on Evidence McCormick

Pinney, Manning, George Baker Susan Tirschwell, Eric A. Michael J. Saifee, Verne, Sternhell, Darren La Seema Dixon, Gilson, J. and Elizabeth P. Wells Angela Vigil. C. for

Howard Schifman was on brief Uyghur amicus curiae American Associa- appellees. of support tion D. Guttentag and Theodore Lucas brief professors Frank on the of law were curiae, addressing Shaughnessy as amici ex rel. Mezei and Clark v. States Martinez, supporting and affirmance. Alex K. Oh Young Huq and Aziz were on the amici brief for curiae Brennan Cen- Law, ter for et Justice NYU School of appellees. al. of support David Overlock Stewart were on Legal brief for amici curiae and Historical support appellees. Scholars in A. Gottschalk on the brief Thomas Immigration for amici curiae National Jus- Center, in support appellees. tice et al. ROGERS, Before: HENDERSON and RANDOLPH, Judges, Circuit Senior Judge. Circuit Opinion by for the Court filed Senior Judge Circuit RANDOLPH.

Opinion concurring judgment filed Judge Circuit ROGERS. RANDOLPH, Judge: Senior Circuit currently citizens Seventeen Chinese Garre, General, Gregory G. Solicitor Base, held at Bay Guantanamo Naval Justice, Department argued Cuba, brought petitions for of habeas writs appellants. him on the cause With corpus. petitioner Uig- Each an ethnic Katsas, G. Gregory briefs were Assistant hur, minority a Turkic Muslim whose General, Cohn, F. Attorney Dep- Jonathan province in the Xinjiang members reside General, Attorney uty Assistant and Rob- whether, question far-west China. Kopp, E. Bondy, ert Thomas M. Anne ruled, petitioners as the Murphy, Swingle, Attorneys. and Sharon requiring govern- entitled to an order McIntosh, Attorney, Scott R. entered an ment them to bring the United appearance. here. release them ap- argued Sabin Willett cause for September 11, the brief Rhe- Sometime before pellees. With him on were Rutkowski, McGaraghan, S. left ba Neil Jason China and traveled Tora in Afghanistan, against Uighurs, Bora mountains the other therefore decided that none of the camp where settled in a other should enemy be detained as Gates, combatants. Uighurs. Parhat 532 F.3d (D.C.Cir.2008). Petitioners fled to Releasing petitioners country of to their Pakistan U.S. aerial de- when strikes origin problem. poses Petitioners fear stroyed camp. the Tora Bora Eventu- Id. they that if they returned to China will ally they were turned over to the U.S. arrest, face torture or execution. United military, Bay transferred to Guantanamo policy is not to individuals transfer “enemy and detained as combatants.”1 to subject countries where will be to mistreatment. Petitioners not produced Evidence before hearings sought comply with the Combatant in Status Review Tribunals governing entry alien’s into the Guantanamo indicated that at some least Diplomatic United States. to lo- efforts fight intended to the Chinese appropriate country cate an in third government, and that had received to resettle them are continuing. In the training firearms at the camp pur- for this meantime, petitioners are under held the Parhat, pose. 532 F.3d least restrictive possible conditions peti- Tribunals determined that the military Guantanamo base. enemy tioners could be detained as com- cases, in petition- As relief their habeas camp by batants because the was run the ers for an compelling moved their Movement, Eastern Turkistan Islamic release into the Although United States. Uighur independence group military the district court the govern- assumed that believes to be Qaida associated with al or initially ment detained in com- Taliban, and which law, pliance with In re Guantanamo State Department designated terror- as a Bay Litig., Detainee F.Supp.2d organization ist years peti- three after the (D.D.C. 2008) (“Mem.Op.”), the court capture, 23,555-01 tioners’ see 69 Fed.Reg. thought government longer any no had 2004). (April legal authority them, to hold id. at 38. As case, In the Parhat court ruled appropriate relief, the court ac- the government presented had not suffi- knowledged that historically authority cient evidence that Eastern Turkistan admit aliens into this rested Islamic Movement was associated with al exclusively political with the branches. Id. Qaida Taliban, or or in engaged had Nevertheless, at 39-40. court held against hostilities or United States its “exceptional” circumstances of Parhat, coalition partners. 532 F.3d at this case and the safeguard need to “an 850. Parhat therefore could not be held as liberty individual’s from unbridled execu- an enemy government combatant. The fiat,” justified tive granting petitioners’ no saw material differences in its evidence Id. at motion.2 7, 2004); "enemy 1. An (July combatant" is "an individual tus Review Tribunal at 1 Sec- part supporting retary, Navy, Implementation who was or or al of Taliban of Combat- forces, Qaida associated ant Review forces that are Status Tribunal Procedures at E-l 29, 2004)). engaged (July against in B hostilities the United partners. States or its coalition This includes any person belligerent has committed a granted 2. The the motion on directly supported act or hostilities aid hearing October and set a date one Parhat, conditions, enemy armed forces." F.3d at week later determine what if (quoting Deputy Secretary, Dep’t any, impose petitioners, it would in re Defense, Establishing Bay Litig., Order Sta- Combatant Guantanamo Detainee ”7 government’ political begins firmly branches analysis Our several away set or restrained on propositions “granted forth Saave established 1153, 1158 Albright, dra 197 F.3d The Chinese Exclu- Bruno behalf one.” (D.C.Cir.1999), Case, from which borrow. we sion ancient that a principle is first the There since Ever the deci- inherent ex right has the Case, nation-state Exclusion sion the Chinese foreigners prescribe clude and to or admit has, exception, sustained the without for their applicable terms and conditions political exclusive branches principle, or admission.3 This exclusion may, decide which aliens and which aliens times,4 recog Roman received dating from not, States, may enter the United and on during nition the Constitutional Convent Ekiu, See, 142 e.g., what terms. U.S. important to be ion5 and has continued an 659, 336; Ting Fong 12 Yue v. S.Ct. Unit- postulate foreign relations of this States, 698, 713, 1016, 13 S.Ct. ed 149 U.S. of other members the international country and (1893); Sing L.Ed. Lem Moon v. 37 905 unity.6 comm States, 538, 543, 547, 15 United 158 U.S. (1895); 967, Wong S.Ct. 39 L.Ed. 1082 century, than a the Su For more States, 228, 237, v. Wing United 163 U.S. recognized power to preme has “ (1896); 977, 16 S.Ct. 41 L.Ed. 140 Fok in sovereignty, ‘inherent exclude aliens as States, 296, Young Yo 185 v. United U.S. maintaining normal interna necessary for 302, 686, (1902); 22 46 L.Ed. 917 S.Ct. defending tional relations Forbes, 549, 556-57, v. Tiaco 228 U.S. 33 against and dan foreign encroachments 585, (1913); Hines, gers exclusively to be S.Ct. 57 L.Ed. 960 312 exercised —a 8, (D.D.C. 2008) (''Order”). provided subjects Oct. dial British and American Order at 2 for, government day, The moved freely same could the Canadian cross border. See States, 231, granted, emergency stay of U.S. Karnuth v. United 279 235- granted stay judgment. 36, 274, court later a full (1929). This 49 S.Ct. 73 L.Ed. 677 As to appeal judgment pending of ex- and ordered understanding sovereign’s the Colonial of pedited briefing government's appeal. aliens, of to control the admission see Jefferson, Virgi- Thomas Notes on the State of States, 651, See, e.g., 3. v. United 142 Ekiu U.S. ed.1955). (William nia 83-85 Peden 659, 336, (1892); 35 L.Ed. Har- 12 S.Ct. 1146 580, 596, Shaughnessy, 342 U.S. 72 isiades Davidowitz, 52, 62-65, 6. See 312 U.S. Hines v. 512, (1952) (Frankfurter, 96 L.Ed. 586 S.Ct. 399, (1941); 61 S.Ct. L.Ed. 581 85 Conven- J., Bouvé, concurring); Clement Lincoln Exc tion Between the United States America and of Expulsion Aliens 4 & n. 3 lusion of Republics regarding other American the status cited; there II Emme- and authorities (1928); I, aliens art. 46 Stat. 2753 Consti- 94, Vattel, §§ rich de Le Droit Des Gens 100 of Intergovernmental tution of the Committee (1758). Migration pmbl., 6 European United States Borchard, Diplomatic 4. Protec- Edwin M. Agreements Treaties and Other International 33, (1915). Abroad tion 44-48 Citizens of Hackworth, (1953); Haywood 603 III Green (1942); Digest Law 725-29 International of Papers 5. James 1277 See 3 The Madison 44-48; 4, Borchard, supra note William (J.C.A. eds., 1996), Stagg Madi- et in which ah Hall, (6th Edward Law 211-12 International reports son Gouverneur Morris' observation ed.1909); Moore, Digest A IV John Bassett "every during Society from a the debates that (1906). Law 151-74 International great right to a club ha[s] nation down declaring new mem- the conditions Mandel, 753, 765, I, 408 U.S. 92 Kleindienst v. Section be admitted.” Article bers should 2576, 9, 1, (quoting S.Ct 33 L.Ed.2d 683 itself is an Clause of the Constitution brief); implicit recognition Congress' authority Solicitor General's Fiallo Bell, 787, 792, 1473, addition, regulate 97 S.Ct. 52 immigration. Article III 430 U.S. 1794, 116, 117, (1977). Jay Treaty of 8 L.Ed.2d Stat. 50

379 62-64, 399; U.S. at 61 S.Ct. ernment given United States to exclude a alien.” ex rel. v. Shaughnessy, 338 U.S. Knauff, 338 U.S. 70 S.Ct. Knauff 537, 542, (1950); 70 S.Ct. 94 L.Ed. 317 With respect petition- to these seventeen Press, 522, 530, Galvan v. 74 ers, the Executive Branch determined (1954); Graham v. not to them to enter the allow Richardson, 403 91 U.S. S.Ct. States.8 is: question The critical what law Kleindienst, (1971); L.Ed.2d “expressly authorized” the court to 2576; 408 U.S. at 92 S.Ct. Math- set aside decision of the Executive Diaz, ews v. 96 S.Ct. Branch brought and to these aliens Fiallo, (1976); 48 L.Ed.2d U.S. at United States and released Wash- 1473; Flores, Reno v. ington, D.C.? 292, 305-06, 113 Kim, Demore v. The district court no cited statute 510, 521-22, treaty order, L.Ed.2d authorizing its and we are Constitution, aware of none. As to the With to respect the exclusive of spoke district only generally. The area, the political in is, branches this there Galvan, as the in court said Supreme Court stated there were “constitutional lim “not merely page history,’ ‘a of ... but a its,” that there was some “constitutional whole pertaining volume. Policies imperative,” protect it needed to “the entry of aliens and right their to remain right liberty.” fundamental of These peculiarly here are concerned with the po- suggest statements court may litical of government.” conduct 347 U.S. have had Fifth pro Amendment’s due 531, 74 S.Ct. 737 N.Y. (quoting Trust cess clause in mind. See Troxel v. Gran Eisner, 345, 349, Co. v. 256 U.S. 41 S.Ct. ville, 57, 65, 2054, 530 U.S. 120 S.Ct. 147 506, (1921)). 65 L.Ed. 963 Justice Frank- (2000). L.Ed.2d process 49 But due furter summarized the it law as continues support clause cannot the court’s order of day: “Ever since national States release. of Decisions the Supreme Court have come into being, right and of this court—decisions district people to enjoy hospitality of a State of court did not acknowledge that the which they are not —hold citizens has been a process due clause does apply not aliens matter of political by determination each without property presence in the sover “wholly State” —a matter outside the con- competence cern and eign of Judiciary.” territory of the United States.9 See Harisiades, 596, 342 U.S. at 72 S.Ct. 512 Davis, Zadvydas 678, 693, v. 533 U.S. 121 (concurring opinion). 2491, 150 (2001); United Verdugo-Urquidez, 259, States v. 494 U.S. result,

As a it “is not within the 269, 274-75, 1056, 110 S.Ct. 108 L.Ed.2d province any court, of expressly unless (1990); 222 law, Eisentrager, v. by authorized Johnson 339 review the determi nation of political 763, 783-84, 936, branch of the Gov- U.S. 70 S.Ct. 94 L.Ed. express opinion 8. We no 1005(g), § on whether the Ex- Treatment of 2005 Act 119 Stat. may ignore ecutive Branch Act, Immigration Nationality 2743. The laws and release into the United 1101(a)(38), see 8 U.S.C. does not treat Congress. States without consent of part Guantanamo as of the United States. Connell, Vermilya-Brown See also Co. v. 335 9. The part Guantanamo Naval is Base of 140, sovereign territory of the United States. (1948). Congress so determined Detainee 380 FAA, cannot tell jus, ibi remedium Jifry 370 F.3d Ubi v.

1255 (D.C.Cir.2004); County Sovereign 32 right 1182 a have us whether State, Dep’t 292 F.3d ty v. Comm. their into the United a court order release Deutch, Harbury v. (D.C.Cir.2002); maxim, the force of this States. Whatever (D.C.Cir.2000), rev’d F.3d 603-04 established law cannot overcome v. Christopher nom. grounds on other sub admission to this “alien seeks 536 U.S. Harbury, right. may so under claim not do (2002); People’s Mojahedin L.Ed.2d States of aliens the United Admission State, 182 Dep’t Iran v. Org. by sovereign privilege granted a Unit (D.C.Cir.1999); v. Pauling F.3d privilege Such a ed States Government. (D.C.Cir. n. 3 McElroy, 278 F.2d alien such terms granted only upon to an 1960) curiam). court, no The (per prescribe.” States shall the United court, panel than a of this must follow less Knauff, 70 S.Ct. 309. A. Bar See LaShawn those decisions. (D.C.Cir.1996) (en F.3d ry, 87 just written Much -of what we have banc). foundation for the served as the sought support The district court also opinion Shaughnessy Court’s the idea embodied invoking its order Mezei, 206, 73 rel. ex jus, maxim ubi ibi remedium —where analogous L.Ed. 956 a case right, remedy. there is there is govern- ways. to this in several one Norwood, Concord, Wellesley, & Towns of (Ellis ment held an alien the border (D.C.Cir.1 FERC, 67, 73 F.2d Mass. v. York). Island, been New He had denied 992).10 do the maxim We not believe entry under into the United States statutory federal constitutional reflects immigration country But no other laws. every violation of a law. See Not receive him. The willing was Court yields remedy, right a even when the right alien, petitioned ruled that the Robbins, v. constitutional. See Wilkie corpus, of habeas had not been de- writ 537, 2588, 2597-98, 127 168 551 U.S. S.Ct. Id. prived rights. constitutional (2007). Application 389 L.Ed.2d 215, ruling the Court 73 S.Ct. 625. so immunity to sovereign doctrine of defeat necessarily rejected proposition that remedy example. is one common See Al- Maine, 706, 754, 119 S.Ct. den v. 527 U.S. take Mez- country because no other would (1999). 2240, 144 L.Ed.2d 636 Another ei, the of indefinite detention enti- prospect case,11is example, application closer to this requiring tled him to a court order See political question doctrine. Attorney General to release him Doe, 592, 612-13, 486 U.S. Webster Supreme As the Court United States. saw (1988) (Sealia, 2047, 100 L.Ed.2d 632 it, Judiciary question could not that, J., dissenting). than More Attorney judgment. 212, Id. at General’s dichotomy is so clear- right remedy— 73 S.Ct. 625. warned, Justice Holmes “[s]uch cut. As 678, Zadvydas, 533 Neither ‘right’ are a constant solicitation words 150 L.Ed.2d nor Clark v. Co., fallacy.” Jackman v. Rosenbaum Martinez, 125 S.Ct. 43 S.Ct. L.Ed. 107 it, advantage we argued part take for reasons have maxim is 10. Some already given. process guaranteed by the Consti- of the due Thomas, Jus, See, e.g., Tracy A. Ubi tution. "Questions, political, in their nature ... Right Fundamental to a Ibi Remedium: The Marbury can made in court.” never be Diego Process, 41 Remedy Under Due San Madison, 137, 170, 2 1 Cranch L.Ed. 60 so, (2004). petitioners cannot If L.Rev. — (2005), Bush, diction, L.Ed.2d contrary. see Boumediene v. —, in viewing Petitioners are incoiTect these 171 L.Ed.2d 41 holding (2008), cases as the constitutional remedy could fashion the sort of “liberty concededly illegal interests of petitioners desired. The courts in Knauff trumps statutory aliens [sic] detention and in had jurisdiction, Mezei also habeas power pending exclusion once that yet deten- in both the Supreme cases Court held tion becomes indefinite.” Br. Pet’rs’ that the decision whether to allow an alien Both cases rested on the Court’s to enter political for the was Constitution, interpretation not of departments, but Judiciary. not the Petition- provision of a immigration laws—a ers and the supporting amici them invoke provision, the acknowledged, Court Con- the tradition of the Great Writ as a protec- gress prerogative had the of altering.12 tion liberty. part tradition, As of that they say, U.S. at 125 S.Ct. 716. a court jurisdiction with habeas It is Zadvydas spoke true that always of an alien’s has had the to order the process due rights, but prisoner’s Court was release if he being held — careful to restrict its statement unlawfully. Geren, to aliens But as in Munaf v. already who had —, entered the United U.S.

States. 533 U.S. at 121 S.Ct. 2491. petitioners are not seek- It ground was on that ing “simple release.” Far They from it. distinguished Mezei. Id. The for, distinction is received, asked a court order com- one that throughout “runs pelling the Executive to release them into law.” Id. The Court stated: “It is well the United States outside the framework established that certain constitutional pro- of the immigration may laws. Whatever tections persons available to inside the be the content of common law habeas cor- United States are unavailable to aliens out- pus, we are certain that no habeas court (cit- side of our geographic borders.” Id. since the time of Edward I ever ordered ing Verdugo-Urquidez, 494 U.S. at such extraordinary remedy.13 1056; Eisentrager, 339 U.S. at An petitioners’ undercurrent of argu 936). 70 S.Ct. ments is that to be deserve released

And again: so we ask what law author- into country this after all have en ized the district court to order govern- dured at hands of the United States. But ment to bring petitioners to sentiments, the United such high-minded, however do States and release them here? It cannot not represent legal upsetting basis for be that because the court juris- had habeas settled overriding law and the prerogatives that, 12. wrong It would therefore be to assert 13. Petitioners observe that “the Executive has by ordering paroled cited no decision in country aliens into which a federal court has remedy withheld a Zadvydas from a civilian held in a the Court somehow un- military prison indefinitely, and without plenary authority political dermined the of the charge, when that juris- civilian is within its entry branches over the and admission of enjoys diction and privilege constitutional point Congress aliens. The up is that has set corpus.” of habeas peti- Pet’rs’ Br. 38. But may framework under which aliens enter extraordinary tioners seek an remedy. We Judiciary the United only pos- States. The significant therefore think peti- it more power Congress gives sesses the it—to review tioners have cited no case in which a federal Executive action taken within that frame- bring court ordered the Executive to an alien petitioners work. Since applied have not for into the United States and to him release admission, they are not entitled to invoke that here, when the alien was held outside our judicial power. sovereign territory applied and had not even immigration for admission under laws. not question here is wheth- case. The not know this We do political branches. any released, of them or but petitioners all should be whether er entry admission under for qualify would presented question That where. do know laws.14 We immigration ad- and the Court never in Boumediene classify evidence there is insufficient earlier, supra at it. As we wrote dressed enemies, that enemy them as combatants — history corpus habeas in the never hardly But that is, States. of the United power it had the thought has Nor for admission. qualifies petitioners brought held an alien overseas detention at Guantanamo does their a nation and territory of sovereign the Unit entitle them to enter many years As general population. released into the scope of habeas ed States. Whatever States, said, we have compensa been has never corpus, the writ in and on terms is can come what Humphrey, Heck v. tory in nature. See province political branches. exclusive Rogers nothing has response, Judge Rodriguez, Preiser L.Ed.2d 383 say. has government Rogers: “[T]he Judge district 2. continuing diplomatic it is represented ordering release into court erred country appropriate to find an attempts ascertaining first without and we have willing petitioners, to admit immigration provided whether doing it so. Nor doubt that no reason to anything as the Execu- power require for detention do we have a valid basis more. alternatively suggested.” Sep. Op. tive

* * * statement, and others like This following response have the We separate opinion, is con- throughout separate opinion. Judge Rogers’s all, gov- confusing. First fused Judge Rogers: “The asserted, or in the here ernment never grant means the to order the writ court, holding petitioners that it is Sep. Op. at 1037. release.” None pursuant laws. form often or in No matter how what any of our has violated undisputed repeats Judge Rogers To they? could immigration laws. How repeat it she does—it proposition—and Judge Rogers does any resolving presume closer to otherwise —as not us will move gov- up the petitioners is insufficient to back government that idence 14. The asserts qualify under not for admission would Pet’rs’ Br. 28. The ernment's claim. See They Br. 27-29. immigration laws. Gov’t stage. dispute cannot be resolved visas, 1182(a)(7)(A), § 8 U.S.C. would need applied have not for admission Petitioners have, (B), they and a court which do not laws; immigration im- pursuant the Executive Branch to could not order migration have made authorities therefore Bruno, grant 197 F.3d them visas. Saavedra immigra- of their no formal determination government suggests at 1160. The 1225(a)(1). § id. For the tion status. See ineligible for another petitioners reason, petitioners are not entitled to same though the United States reason' —even 1182(d)(5)(A), § parole 8 U.S.C. under they allegedly engaged in target, not their only ap- remedy granted to an that can be meaning activity” within the of 8 "terrorist only in the exclu- plicant for admission and 1182(a)(3)(B)(i)(I), which would § U.S.C. Secretary of Home- discretion of the sive U.S.C. removal under mandate their Security. 1225(c)(1). ev- land object that § Petitioners judicially Saavedra Bru- throughout separate opinion, e.g., her id. at not reviewable. 1032,1034,1038 strange enough. no, 197 F.3d at 1158. —is still, Stranger Judge Rogers charges the immigration limits on are set Worldwide “prematurely” district court in acting with § Additionally, out there U.S.C. petitioners’ ordering release into the Unit- are limitations on the number of visas Sep. Op. ed States. 1038. How immigrants any can from one be issued to it, so? As she sees the district court § particular country. Id. Immi- whether, should have first determined un- grants categories: are divided into three laws, immigration petitioners der the were immigrants, id. family-sponsored eligible to enter the or were ex- 1153(a); immigrants, § employment-based cludable. But govern- no one—not the 1153(b); diversity immigrants, § id. ment, petitioners, not amici—no 1153(c). § employment-based id. For im- should, suggested one the court or migrants, preference given “pri- is first could, any make such determination. workers,” ority include aliens which then Judge Rogers talking What is arts, sciences, extraordinary ability edu- about on evaluating peti- when she insists cation, business, athletics, or id. tioners’ eligibility for admission under the 1153(b)(1)(A); § “outstanding professors immigration laws? None of the researchers,” 1153(b)(1)(B); § id. applied Perhaps has even for admission. “certain multinational executives and man- which, she thinks a court should decide if 1153(b)(1)(C). agers,” § There are any, of the would have been preference categories unnecessary lower admitted if they applied. had But decid- to set forth. ing that at this stage impossible. A Suppose eligibility any peti survey brief of immigration law shows tioners was determined on the basis that why. seeking only temporary admis were Eligibility in part turns on what status again, sion. Here to be admitted aas seeking. the alien is nonimmigrant categories set presume applying that those for entry forth in margin,15 apply the alien must permanent seek resident status. Such 1201(a)(1)(B). § for a Dif visa. U.S.C. persons must an immigrant first obtain ferent requirements classes have different visa from a consular officer. 8 U.S.C. visa, for what the alien must do to obtain a 1101(a)(16). But the consular officer can require but all that the alien submit some only act petition after a filed with form. Secretary Security, of Homeland showing Suppose petitioners’ eligibility the immigrant status for the alien admission turned on could 1153(f), §§ whether be qualifies. Id. 1154. The con- asylum or refugees considered seekers. sular officer then has the exclusive author- seeking asylum An alien ity refugee to make the final decision status about the (refugees abroad; issuance of immigrant apply asylum ap- such visa. Id. from 1201(a)(1)(A). 1104(a), here) §§ That plicants already decision is apply when must workers, 1101(a)(15)(H); general nonimmigrants § Some classes of id. aliens with ex- 15. abilities, (a)(l5)(0); diplomats, traordinary § are: career 8 U.S.C. id. en- 1101(a)(15)(A); athletes, 1101(a)(15)(P); § temporary § visitors for busi- tertainers id. 1101(a)(15)(B); workers, 1101(a)(15); pleasure, religious § § ness or id. aliens id. and indi- transit, (a)(15)(C); § ship coming provide id. or air- viduals information on a members, (a)(l 5)(D); plane organization § crew id. terrorist or for a criminal inves- students, 1101(a)(15)(F); (a)(15)(S). temporary tigation, § § id. (a) “refugee” attempted as defined in 8 has never entered or to en- qualify as (b) 1101(a)(42). they country, applied § ter the has never Whether could U.S.C. immigration for under the heading depends admission laws. be admitted under this numerical limitations on established Judge Rogers: majority “[T]he 3. President, of the and on the discretion inquiry has recast the traditional of a Attorney Secretary or the of General habeas court from the Execu- whether Security. qualify To as a refu- Homeland tive has shown that detention (1) firmly an alien must not be reset- gee, peti- is to whether the lawful (2) country, foreign “special tled in a be of court tioners can show that habeas humanitarian concern” ‘expressly is authorized’ to order aliens States, immi- be admissible as an brought Sep. the United States.” Id. grant under laws. Op. at 1036. 1157(c)(1). § Although Attorney Gen- Judge Rogers fails to mention that the Secretary given eral and the discretion “expressly quotation authorized” in our many grounds of the of inadmissi- waive opinion Supreme is taken from a Court bility refugee applicant, for a the statute opinion in a repeat habeas case. We with specifically prohibits waiver of the “terror- emphasis: some additional it not “is with- 1157(c)(3); § activity” ground. ist Id. province any court, unless ex- supra at 1029 n. 14. pressly by law, authorized review parole remedy, 8 U.S.C. political determination of the branch of the 1182(d)(5)(A), only granted not given Government to exclude a alien.” Secretary Knaujf,

exclusive discretion of the 338 U.S. at Security, specifically Judge Homeland but also is Rogers finally When confronts Knaujf, “any applying limited to alien for admis- how does she deal with the Su- preme opinion? She provides sion.” The section also that no Court’s calls “outlier,” as if her label could erase the properly alien who would more be consid- Reports. case from the United States We refugee paroled ered a should be unless and she know knows the lower federal Secretary specifically determines that may courts not disregard Supreme “compelling public reasons in the interest” precedent even if think that later argue parole remedy. favor cases have weakened its force. See Rodri many complications, There are more but guez Quijas de Express, Shearson/Am. the bottom line is clear. Aliens are not Inc., eligible for admission into the United respect With applied States unless for admis- Knaujf, reinforced, later cases have may sion. Numerical limits render them lessened, See, its precedential e.g., value. ineligible, may many other consider- Plasencia, 21, 32, 34, Landon v. Secretary ations. The has wide discretion 74 L.Ed.2d 21 Mez- respect to categories appli- several ei, 73 S.Ct. 625. cants and the decisions of consular officers Judge Rogers: “[T]he applications subject judi- visa are not prece- has mischaracterized relevant cial And impossible review. so we find it Sep. Op. dent.” at 1037. Judge Rogers to understand what is think- insists, instance, ing when she that “the Judge Rogers referring to our discus- by ordering erred release sion Court decisions in ascertaining into the without first Zadvydas. points Clark and We made two immigration provided whether the a about the cases. The first was that both statutory provisions valid basis for detention” of someone who rested on that are not Judge Rogers country involved here. acknowl- batant” alien be released into the (as edges our Our distinct from be admitted under the the correctness of view. laws) immigration when the Executive can point second was that far as a as court’s point legal justification to no detention for tempo- alien releasing an into the path and to no of release. I foreseeable rarily pursuant statutory authority, to join analysis the because it cannot court’s there a clear distinction between is not faithful to Boumediene and would the aliens within and those States compromise both the Great Writ as a Zadvy- geographic “outside our borders.” check on detention the arbitrary bal- das, at 121 S.Ct. 2491. How powers ance of over exclusion and admis- Rogers does Judge deal this distinc- with sion and release of aliens into the United tion? “re- She claims that Boumediene recognized by the Court jected this territorial rationale as to Guan- Congress, Executive, the reside the Sep. tanamo.” Op. at 1038. But Furthermore, and the habeas court. it recognized, had never extended unnecessary conclusion is because this rights constitutional to aliens detained yet court cannot if justi- know detention is States; outside the United Bowmediene posture case, fied here. Due to the of this therefore specifically holding limited its yet district court to hear from the Suspension Clause. 128 S.Ct. at 2262. laws, regarding Executive may Executive had asserted * * * form an alternate basis for detention. The The judgment of the district court district court thus erred in granting re- reversed for cases are remanded prematurely, lease and I therefore concur further proceedings consistent with judgment. opinion. So ordered. I. The Executive chose not to file returns ROGERS, Circuit Judge, concurring in petitions corpus for writs of habeas judgment: the petitioners. After —Bush, In U.S. —, Boumediene v. hearings several and briefing, the district 41 (2008), 171 L.Ed.2d court determined that the Executive nei- Supreme Court held that detainees in the “enemy ther claimed were com- military prison Bay at Guantanamo batants” or dangerous, otherwise nor (“Guantanamo”) are “entitled to the privi crime, them charged pointed nor lege of corpus challenge habeas statutory detention, other grounds for nor detentions,” legality of their id. at presented reliable evidence that

and that a “habeas court must posed a threat to U.S. interests. re order the conditional release Guantanamo Bay Litig., Detainee Misc. detained,” unlawfully individual at (D.D.C. Op. No. Mem. Oct. 2008) (“2008 Today ap nevertheless Op.”). Mem. The Execu- to conclude that pears deny a habeas court lacks peti- tive also did not detained authority non-“enemy to order that a com- tioners.1 The district court understood the majority opinion accepts petitioners, 1. The Execu- tions are still held in a ‘‘petitioners tive’s are assertion brief that high-security prison with no contact with pos- held under the least restrictive conditions friends, family, news from the outside military Maj. sible in the Guantanamo base.” world, sporadic aside from from visits attor- 1029; Op. Appellants’ Br. at 9. This neys during which detainees least — means, according allega- to the uncontested re- court and before the brought be it had must that argue instead Executive Id. at 17. leased. authority to re- “wind-up” extra-statutory district and that patriate petitioners2 the Exec- However, district court authority to lacked the any case court in sepa- possible to a pointed utive had them released order that the district for detention ground rate at, of these Rejecting both Id. States. namely peti- court did not resolve — in years first in view rationales —the the immi- under excludable tioners were unsuccessfully had the Executive which could be detained statutes and gration receive country would sought to find Mot. Sta- proceedings. pending removal being- of their risk without (citing 8 U.S.C. Tr. at 44-45 Hr’g tus 8-9, tortured,3 id. the second view (aliens 1182(a)(3)(B) engaging in terror- § to afford an Boumediene and the need 52-53, inadmissible)), 57-58 ist activities at 15-16 —the remedy, (Oct. 2008) 1182) habeas effective (discussing 8 U.S.C. petitions, which granted (“Oct.2008 Hr’g”). The Executive Mot. country. Ruling into the stay release so it could evaluate sought sought had also no lawful basis under the had shown status petitioners’ the Executive detention, Depart- of the present indefinite and the'views had become for what Security,4 id. at 44-45. of Homeland petitioners ment court concluded the district has years "[petitioners’] detention five and the Red chained to the floor—and sometimes effectively 2008 Mem. indefinite.” Appellees’ Br. at 8-9. become Cross. Op. at 8-9. argues this stems from the Executive 2.The prisoners of past wars to detain practice in majority the extent The understates ("POWs”) beyond a conflict in the end of war country viable which there is no other occurred, repatriation, for arrange as go. Maj. Op. at petitioners can which these held example, respect to German POWs only petitioners fear who 1024. It is not during States continental United within the if returned to their home- would be tortured majority does not discuss War II. The World China; Secretary Navy Gor- former land of only up authority,” I note so this "wind Secretary of State England former don and Army Conventions and U.S. the Geneva both much, and the confirmed as Colin Powell repatriation "without policy require of POWs proposi- disputed that never Executive has (III) Relative delay.” The Geneva Convention And, tion, litigation. while even in this War, Art. of Prisoners of to the Treatment "policy” of the United states it is 14, 1955, July 6 U.S.T. ratified people into countries not to render 3364; Dept. No. T.I.A.S. Army, Law subject or other will be to torture 27-10 at Warfare, Field Manual of Land mistreatment, id., legal that is also the obli- ¶ 71(d) (instituting verbatim Geneva signatory as a gation of die United States 118). first Gulf Art. In the Convention III Against Tor- Convention the United Nations 80,000— War, example, all POWs—over for Cruel, Degrading and Other Inhuman ture refugee granted status repatriated or were Punishment, signed Apr. Treatment or within six months within Saudi Arabia Treaty No. S. Doc. Def., Dep't of cessation of hostilities. Nothing the Executive's fil- U.N.T.S. 85. Congress: Report Conduct Final January ings under seal *662, (Apr. *671-72 Gulf War Persian changed the situation. 1992), http://www.ndu.edu/ available contrast, By these library/epubs/cpgw.pdf. Security Act of Pub.L. 4. See Homeland have not been petitioners, seventeen 101, 441-478, 107-296, §§ 116 Stat. No. POWs, imprisoned at have been treated (codified at 6 U.S.C. and, 2192-2212 years, as the over seven Guantanamo for 111, 251-298) (establishing Department of determined, §§ the Executive’s un district court Security vesting responsi- in it Homeland to locate a suitable efforts successful security immigration). bility for border on-going more than had been for release The district court stay pro- declined to mission country. of aliens into the ceedings, noting petitioners that had al- Zadvydas, 533 at S.Ct. 2491 ready been imprisoned years for seven and (noting that purported “plenary powers” of delay had been “the name of game” in Congress immigration to create are law litigation strategy. the Executive’s Id. at “subject important limita- constitutional 47, 59. Instead the district court ordered tions”); Clark, the petitioners immediately released into S.Ct. 716. To instead order release before States,5 hearing with a to follow assessing legal authority asserted for de- position week later at which time the tention incompatible obligation with the Homeland Security presented, could be id. of a habeas infra, court. See Part II. time, at 59-60. At that the district court if delay Even in raising Executive’s intended to consider peti- conditions for immigration statutes as a basis for deten- release, tioners’ continued id. The district tion appears troubling given opportuni- its purported to restrain the Execu- ty writs, to file returns to the as the tive from taking petitioners into custody petitioners asserted did not seek an pursuant immigration statutes dur- immigration remedy, Hr’g Oct. 2008 Mot. ing the prior hearing, week id. at Tr. at the Executive cannot have waived 60. the argument it raised argument when proceeding, so the district court erred in response to the rejection district court’s by ordering release into the country with- of its other rationales detention. out first ascertaining whether the immi- Because the district court could not gration provided a valid basis for properly order release into this country detention as the alternatively Executive yet when it could not know whether deten- Boumediene, suggested. See 128 S.Ct. at justified, tion was I judgment concur in the 2266. The court seems to have relied on vacating the release order. Because the Davis, Zadvydas question of whether the stat- (2001), 150 L.Ed.2d 653 and Clark v. provide justification utes that “cannot be Martinez, stage,” Maj. Op. resolved at 1029 n. for the proposition 14,1 would remand the case for that deter- could no longer be de- mination to be made. tained, see Op. 2008 Mem. at 8. But in those cases the Court first as- II. sessed arguments the Executive’s that it In reversing and remanding, majori- had the right to detain under immigra- ty has written broadly, apparently conclud- tion statutes finding before had ing that a habeas court is without expired and ordering release. release into this 386-87, 716; U.S. at Zadvydas, Guantanamo detainees whom the Execu- U.S. at 121 S.Ct. 2491. In so prefer tive would doing, indefinitely, detain gave effect to both the province of the where there is no legal Great Writ as a basis for that de- check on unjustified tention, detention and the power including no contention that these political branches over exclusion and ad- “enemy are or a combatants” port, Petitioners were to be Hr'g released accor- and care. See Oct. 2008 Mot. Tr. plan, developed dance with a detailed with They acknowledged through Services, Immigration Refugee Lutheran bringing counsel that conditions for them into president Uighur Congress, of the World country presented Depart- issues for the housing Uighur and others for their fam- Security. ment of Homeland Id. at 52. area, transportation, sup- ilies financial senate, statutes enacted through dangerous. even

showing v. Ping United congress”); Chae Chan court does at 1026. Because this Maj. Op. Case), (Chinese 130 U.S. Exclusion if could be authorized not know detention 581, 603, 623, L.Ed. 1068 9 32 S.Ct. here, not reach that need surprising under our constitu- It be would fundamentally, analysis its issue. More system if the were otherwise. tional law as a compromises both the Great Writ Tube v. Saw Youngstown Sheet & Co. detention, effectively arbitrary check on 579, 640, 863, 72 96 yer, 343 S.Ct. U.S. contrary to the Sus- suspending the writ (1952) (Jackson, J., concurring) L.Ed. 1153 9, 2, § Clause, cl. and the art. pension (“I persuad- and I am not suppose, did not exclusion and regarding of powers balance ed, open question, it to history leaves of aliens into the and release admission courts, that the at least in the executive by Supreme Court country recognized branch, like the Federal Government as Executive, Congress, in to reside whole, only delegated powers. possesses I Consequently, and the habeas court. of the Constitution was not purpose it. join cannot keep but to it from only grant power, to hand.”). the single out of Even getting A. precedent, to this line of apparent outlier recog- urges this court to The Executive power to exclude which stated extra-statutory, perhaps constitu- nize an legislative aliens “stems not alone from tional, in order power Executive to detain in is inherent the executive power but entering alien from the Unit- prevent foreign control the affairs of the power to Appellants’ Br. at 21. Su- ed States. See nation,” Shaughnes v. ex rel. U.S. Knauff there is precedent indicates preme Court 537, 542, 70 S.Ct. 94 sy, 338 U.S. and the Executive’s author- power, no such at L.Ed. is no outlier all. 317 aliens, and remove and ity to exclude challenged Knaujf, upheld the Court end, to effect that must come detain them by stat- action because was authorized congressional delegation, explicit from an terms,” ute, in “broad id. at 70 albeit confirm, Maj. citations majority’s as the 309, thereby acknowledging that the S.Ct. See, Zadvydas, 533 Op. e.g., at 1025-26. on matters of exclu- political branches act 2491; 696-99, v. at 121 S.Ct. Galvan statutes and through sion and admittance Press, 522, 531, 737, 98 347 U.S. treaties. (“As to the extent of the L.Ed. 911 claims need of a Where Executive entry Congress regulating the power [in power yet delegated control aliens], there is not deportation and country, entry Supreme into the Court merely history,’ but a page ‘a whole Congress it to look to for a has instructed the formulation of these [T]hat volume.... remedy. See exclusively to policies is entrusted Con- (“The fears that the S.Ct. 716 Government firmly as imbed- gress has become about compro- be security of our borders will legislative judicial tissues ded if into the mised it must release any aspect gov- of our body politic our inadmissible aliens cannot be re- (citations ernment.”) omitted, emphasis so, can Congress If that is attend moved. U.S., added); Fong Ting Yue it.”); Uniting Strengthen- see also 37 L.Ed. by Appropriate ing Providing America States, Ekiu and Obstruct Required Intercept Tools (“USA PATRIOT Terrorism Act of 2001 (1892) (the remove, detain, 412(a), ACT”), 107-56, § Pub.L. 115 Stat. (codified “may be exercised either exclude aliens U.S.C. 1226a(a)(6)) Attorney General by president (providing through treaties made authority Thus, to detain pursu- terrorist aliens Mezei the longer ant to removal than recognized six months broad Executive not be- circumstances, under certain after the Su- cause it was inherent to the Office of the preme Zadvydas President, Court in found no such but because Mezei’s case that statutory authority existed, then 533 U.S. power specifically authorized Con- 2491). statutory Other gress. Id. at (“[Rjespon- S.Ct. 625 justification may also exist in some cases. right dent’s to enter the United States 387, 543 U.S. at 125 S.Ct. 716 depends on congressional will, the J., (O’Connor, concurring) (pointing out courts cannot judgment substitute them that the “has other statutory Executive mandate.”). legislative the Mezei is means for detaining aliens whose removal thus another case in Supreme which the is not foreseeable and presence po- whose Court found justified detention because it risks,” ses security including authority un- by was authorized statute. ACT). der the USA PATRIOT If these B. petitioners present “special circum- stances,” Zadvydas, 696, 533 U.S. at 121 The majority does adopt outright 2491, 5.Ct. the as Executive appears to the argument Executive’s that detention suggest, supra see n. Congress may, justified here is under an extra-statutory limits, within constitutional provide rem- power, Executive but instead seems to 695,121 edy, id. at S.Ct. 2491. conclude that the habeas court lacks the power to order the release of non-“enemy Shaughnessy v. United States ex rel. combatant” Guantanamo detainees from Mezei, 345 U.S. 97 L.Ed. detention, indefinite even such where de- (and by relied on the majority justified tention is not by statute. The Executive), Maj. the Op. at is not to effect, however, is much the same. To the contrary. That case does not stand conclusion, reach this majority the has re- for the proposition by detention cast the traditional inquiry of a habeas if Executive authorized it selves to court from whether the Executive has effect exclusion of an alien whom the Ex- shown that the petitioners detention of the ecutive chooses not to admit. To the con- lawful whether the trary, Supreme can Court looked a stat- show the habeas “expressly ute then in court is effect and repealed, since authorized” to order Congress brought wherein had aliens into “expressly author- Maj. Op. ized” the President to United States. exclude aliens with- hearing Along way, out a Attorney majority’s analysis, when the General Maj. entry Op. determined would be prejudicial to tends to conflate the power the interests of the United of the classify States. 345 Executive to an alien U.S. at S.Ct. 625. The “admitted” within Attorney meaning of the General so determined immigration statutes, and ordered the power and the petitioner on excluded the basis of confi- habeas court to physically allow alien dential information. Id. at country.6 into the But analysis, like Zadvydas, 6. See imprisonment U.S. at term within the United (“The question before us is not one of (citation omitted)); Mezei, States.” 1 "confer[ring] right on those admitted the (an alien, 73 S.Ct. 625 inadmissible ' ’ against remain the national will" or “suf although physically present in the United ’ ferance of aliens" who should be removed. States, “only is deemed to be on the threshold Rather, the issue we address is whether aliens entry"); initial 8 U.S.C. that the finds [Executive] itself unable to re 1182(d)(5)(A); Barber, Leng May Ma v. move are to be condemned to an indefinite imprison- discussion, for all unlawful remedy afforded rights/remedy majority’s ”). very .... 1027, ignores purpose ment Maj. Op. at as a province and its of the Great Writ Furthermore, mischar- majority The power. Executive arbitrary check precedent. acterized relevant power means grant writ did not have the district court offers that Rodriguez, release.7 Preiser to order be to order States because released into the United (“[T]he of ha- essence impermissibly “set such an order would person is an attack corpus beas decision of the Executive aside the custody, legality of that custody upon deny petitioners release Branch” ... traditional function writ But Maj. Op. at 1026. the United States. illegal custody.”); from is to release secure makes clear Clark Blackstone, see 3 William Commentaries * exactly power the that a district court has England (Liberty is a 133 the of Laws lacking majority today the finds that —the ought not right” “natural inherent which an unadmitted alien re- power to order any spe- in case without the abridged “be States when deten- leased into law,” induces of and permission “[t]his cial otherwise be indefinite. 543 tion would necessity expressing upon of an absolute 371, 125 716 S.Ct. U.S. for it the reason which every commitment Zadvy- that like tainees the brought prefer who were there involun- Executive detain would indef- were tarily entitled under the initely Constitution but as to the whom Executive to seek habeas relief every because no authority. “[i]n exercised lawful detention practical abroad; sense Guantanamo is not The petitioners seeking release into the jurisdiction is within the constant [and Uighurs United States are seventeen ‘plenary control’] the United States.” come to the as unadmitted aliens S.Ct. at It held further that who are not “enemy combatants” or other- whether a process substitute “satisfied] by Executive, wise shown the when afford- due process standards” was not “the end ed opportunity, dangerous the to be aor the inquiry,” [of because Court’s] “[h]abeas interests, threat to U.S. as to whom corpus process exists, is a collateral the Executive yet as has failed to show words, through Justice Holmes’ all ‘cu[t] grounds detention, for their appears which g[o] very forms and the tissue the indefinite. the pre- Because district court ” (quoting structure.’ Id. Frank v. maturely determined were Mangum, entitled to be released into (dissenting opinion)). prior ascertaining whether Execu- Furthermore, majority does not ex- tive, asserted, would have lawful plain procedural how a lack of process due grounds to detain them under immi- rights petitioners, it asserts and gration statutes, I concur judg- with the Clark, uses to distinguish Maj. Op. at ment would remand the case so that court, go power would of the which the district court could so ascertain. Un- the majority lacking, Maj. Op. finds however, like majority, I would con- clude, consistent province with the sum, Great political Writ and the safeguard aims to branches, that, separation powers ensuring were district court judiciary not ascertain upon petitioners’ does encroach thereafter de- province political tention But lawful and has become effec- branches. just tively indefinite, as the are limited courts to enumerat- then under powers, Executive, ed 716; so too and the U.S. at n. supra them to order have the 6, it would country.

conditionally released notes made; upon an habeas is that the court das, 678, 2491, 121 150 533 U.S. S.Ct. validity; and corpus may examine its 653, proposition on the L.Ed.2d rested circumstances of the ease according to the by the immi- detention was unauthorized bail, or may discharge, admit to remand Maj. Op. at 1027-28. gration statutes. 84, at prisoner.”); The Federalist No. detention is (John only goes But that to whether Hamilton) (Alexander C. Hamil- 629 here is that once the justified. Relevant 1869) (describing corpus habeas as ton Ed. the detention Supreme Court concluded “arbitrary remedy “a for fatal evil” [the] unlawful, re- it ordered aliens was 2 imprisonment”); Kent, James Commen- (O.W. If the ma- leased into the United States. Holmes, *32 taries on American Law court, 1873) a habeas jority correct that Brown, 12th were Jr., ed., Little & Co. ed. (“[The] finding that the Executive detains corpus] upon habeas con- [of excellence alien indefinitely an unadmitted without easy, prompt, in the and efficient sists claims, 185, 188, 1072, monetary are to that extent 2 L.Ed.2d 1246 addressed U.S. 78 S.Ct. 253, Toy, Maj. Op. too 198 U.S. irrelevant. at 1029. So United States v. Ju 263, 644, majority's of a 49 L.Ed. 1040 citations discussion 25 S.Ct. 1027, (Holmes, J.) ("The although physi petitioner, right/remedy dichotomy, Maj. Op. at - boundaries, Robbins, -, regarded cally e.g., within our is to be U.S. 127 Wilkie v. 2588, 2597-98, (2007), stopped been at the limit of our as if he had 168 L.Ed.2d 389 S.Ct. right jurisdiction, kept there while his question whether a new cause where the debate.”). The district court provide enter was under created to a reme- of action should be "parole” presented motions for here was dy under Bivens. for a constitutional harm - Geren, Likewise, and for release. the citation to v. Munaf -, 2207, 171 L.Ed.2d 1 1028, (2008), Maj. Op. inapposite; unlike styled plead- their 7. As have not claims, Munaf, petitioners here are majority's compensatory ings as 477, seeking the local law and in Humphrey, to circumvent Heck v. 512 U.S. citations to 2364, (1994), change intention to their 383 fact disavowed 129 L.Ed.2d 475, 493, through Rodriguez, 93 status under and Preiser Hr'g Tr. at 7. habeas. Oct. 2008 Mot. 439 S.Ct. 36 L.Ed.2d 391 authorization, powerless nonetheless to habeas court exercises core function un- release, order then the der III Executive Clark Article of the Constitution when detention, could have continued the even orders the release those held without Instead, legal justification. without justification. lawful Indeed habeas is not Supreme petitions held “the encroachment, Court “a but time-tested de- corpus granted.” habeas should have been vice” that “maintain[s] ‘delicate bal- 386-87,125 543 U.S. at S.Ct. 716. governance’ ance of that is the surest itself Boumediene, liberty,” safeguard of The majority also offers that because (quoting Rumsfeld, S.Ct. at Hamdi petitioners are aliens outside the United S.Ct. not applied have for visas (2004) (plurality opinion)). L.Ed.2d process are not entitled to the same due The petitioners privilege Zadvydas the aliens in and even Clark. including right writ to invoke the Maj. Op. (citing, e.g., John release, court’s order v. Eisentrager, son (1950)). Supreme Court’s deci- Howev- Boumediene, sion in er, Clark shows a habeas court 128 S.Ct. at rejected has the this territorial ra- release into the Guantanamo, as to holding tionale that de- United States unadmitted aliens whom

Case Details

Case Name: Kiyemba v. Obama

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 18, 2009

Citation: 555 F.3d 1022

Docket Number: 08-5424, 08-5425, 08-5426, 08-5427, 08-5428, 08-5429

Court Abbreviation: D.C. Cir.