Lin Guo Xi v. United States Immigration and Naturalization Service, Opinion

reasoning Bertrand is Second Circuit’s XI, Petitioner-Appellant, Lin Guo

persuasive: agents statute in vested Discretion v. ever, rarely, is the federal judicial review for abuse. entirely free of AND STATES IMMIGRATION UNITED discretionary power is not absolute That SERVICE, Opin- NATURALIZATION to our constitu- fundamental power is ion, Respondent-Appellee. government. The discre- tional form parole unadmitted tionary power No. 01-35867. by statute to Attor- granted Appeals, United States Court of General, delegated by him to

ney Ninth Circuit. broad, Directors, it INS District granting the At- limits. not without 8,May 2002. Argued and Submitted discretionary power, torney General modify qualify did not Aug. Filed corpus action to availability of a habeas pending aliens detained unadmitted proceedings. of exclusion

completion (internal 210-11 citation and

684 F.2d at omitted).

footnote quibble long-standing

I no with the have that we will not disturb the

proposition 212(c), long as

BIA’s discretion under factors, explained relevant considered

outcome, with its and is consistent own INS, See,

precedent. e.g., Yepes-Prado (9th Cir.1993). not,

10 F.3d We must

however, of review or confuse the standard jurisdic- lack of scope of review with Marczak,

tion to review. 971 F.2d at See on the majority’s

516. The reliance tradi-

tional between the manner in distinction

which exercised and the fail- discretion is

ure to exercise discretion cuts too broad a Cyr,

swath. See St. 2271; United States ex rel. Ac- Shaughnessy,

cardi v. L.Ed. 681 Failure discretion is a exercise manifest

abuse reviewable of discretion under not, however,

§ 2241. This fact does fore-

close review other circumstances of of discretion.

manifest abuse Stansell,

Jay W. Assistant Public De- Sweet, Attorney, fender and Michelle Staff Office, Seattle, Federal Public Defender’s WA, petitioner. for the Slocum, Brian of Immigration G. Office Division, Litigation, Department Civil Justice, D.C., Washington, for the respon- dent. RYMER,

Before McKEOWN GOULD, Judges. Circuit OPINION McKEOWN, Judge. Circuit year ago the Supreme Just held that 8 U.S.C. “limits to a post-removal-period alien’s detention” per period reasonable time and “does Immigra mit indefinite detention” (“INS”). Naturalization tion and Service asylum on his Davis, applied Lin based laws. family planning opposition China’s We L.Ed.2d judge denied Lin’s claim immigration An question presented are now which became and issued a removal order mean- bears the same whether this how May disputed final in deemed inadmissible individual ing for an many attempted times the INS to secure under 8 U.S.C. States the United to to trip for Lin’s return travel documents yes. analysis § answer is Our 1182. The to many how times he refused China and and ends Zad- begins § with is, however, that cooperate. undisputed con- Supreme vydas. Because cooperate February agreed in Lin statute, by that we are bound strued obtaining in travel docu- INS upon not called and thus are framework request A for travel documents ments. any constitutional scope address to the accordingly was submitted Chinese Indeed, alien. an inadmissible claims of consulate, yet responded. not which has Court, recognize we Supreme like the accepts parties dispute whether China The different were this a might be the result its nationals who have been the return of petitioner question. removed from the United States. ordered Xi, here, squarely falls within the Lin Guo 1231(a)(6) and, reviewed Lin’s de- consequently, § When the INS first ambit of February in tention in it found status within the stay a an em- place the dis- that Lin had Zadvydas. therefore reverse We state, Washington in ployment prospect peti- of Lin’s habeas trict court’s dismissal not, however, were of no but concluded these facts mean tion. This result does significance “[t]he because Chinese Consu- automatically. Lin will be released regularly late issues travel documents to Instead, will be entitled to on remand Lin custody.” their citizens in The re- I.N.S. release if he can demonstrate supervised Lin viewing officer thus recommended that significant is no likelihood his that there in kept be detention. After the District reasonably in the fore- removal to China agreed Director of the INS with this rec- future. seeable ommendation, petition Lin filed a habeas pursuant days to 28 U.S.C. 2241. Ten Background in before the Court’s decision Zadvydas, the district court denied Lin’s China, Xi, Lin a citizen of fled his Guo petition. Lin filed a motion for reconsider- Mariana homeland for the Northern Is- ation, citing the new decision. The district legally in 1997. Lin was never lands June a minute denying court issued order admitted States. The Unit- United Lin motion for reconsideration because apprehended him ed States Coast Guard lawfully was never admitted to the United off the on a boat that was coast Guam “subject States and thus to the fic- aliens in violation of being smuggle used to Lin in tion doctrine.” remains detention immigration laws. Lin United States 1231(a)(6). pursuant to pleaded guilty smuggling charge. to the At the conclusion of his six-month sen- Analysis tence, pend- Lin was detained INS proceedings. Ordinarily, ing the outcome of removal when an alien is ordered Lin was transferred from the detention removed from the the At- Seattle, facility facility torney obliged to facilitate that Guam to General days, individual’s actual removal within 90 Washington. “that, threat,” concluded once the Court period.” called “removal a period reasonably foresee- longer is no 1231(a)(1). removal removal During the U.S.C. able, longer is no continued detention au- required Attorney General period, by the thorized statute.” has been ordered individual who detain 2491. grounds. specified certain on removed however, 1231(a)(2). Congress,

U.S.C. threat" the “constitutional actual removal securing recognized prospect the Court was the that concerned always possible. be days will within 90 indefinite, government’s potentially de- authorizes Consequently, of resident aliens permanent period: removal beyond the tention Id. deportable. have been deemed who 692, 695-96, Lin is not a who is inad- removed An ordered alien Indeed, not title, he was even resident alien. 1182 of under section missible when he the States was United nonimmi- within of violations [for removable Accordingly, the removal conditions, apprehended. viola- or grant status premised him was against order entered laws, threatening or criminal of tions the inadmissibility to upon his has been de- security] or who national 1182(“Inad- 8 U.S.C. Compare States. to be Attorney the General termined aliens”) § 1227 8 U.S.C. missible with unlikely to community or to the a risk aliens”). (“Deportable removal, may of with the order comply period removal beyond the be detained however, 1231(a)(6), does not Section released, the and, subject to shall be between individuals any distinction draw paragraph supervision of terms grounds on of inadmis- are removable who of grounds on sibility and those removable 1231(a)(6). determine We must 8 U.S.C. face, the statute ap- On deportability. indefinite permits this statute whether to three classes of symmetrically plies first enu- of an individual (1) are “inadmissible those who aliens: who, Lin, has been like category merated (2) 1182;” who those are section under United States. inadmissible to the deemed 1227(a)(1)(C)(vi- under sections deportable I. or nonimmigrant status condition of olation 1227(a)(2) (criminal offenses), or entry), Court held grounds); related (security and the indefi- permit did not (3) to the commu- are a risk those who or long-time resident of two nite detention the removal nity unlikely comply or and as committed crimes aliens who order. removed. No were ordered consequence the sec- Zadvydas concerned Although accept either indi- willing to country was relating to de- prong of removed. ond they were ordered vidual once statute — hold- ultimate circumstance, aliens—the Court’s portable Notwithstanding that a whole: “we ing addresses statute to hold them Attorney General continued implicit an to contain the removal construe years after in detention limitation, application 684-86,121 time’ ‘reasonable S.Ct. period. court re- subject to federal “indefinite, which is per- The Court reasoned 682,121 2491. In human lib- deprivation view.” permanent, haps statute, applicability assessing an presented judicial review erty” without it noting that broadly, spoke the Court difficulty. constitutional “obvious” aliens who categories of to certain “applies “interpreting the 2491. In removed, namely ina- ordered have been to avoid a serious statute aliens, aliens, Inc., criminal way Express, 298, 312-13, dimissible nonimmigrant their (1994) (“It who have violated sta- 114 S.Ct. 128 L.Ed.2d 274 conditions, and tus aliens removable for responsibility [the Court’s] security foreign certain national rela- means, say what a statute and once the ” Id. tions reasons.... spoken, Court has duty is the of other added). Concluding that (emphasis respect courts to that understanding of the permit not “does indefinite de- statute governing A judicial rule of law. construc tention,” pointedly the Court used the tion of a statute authoritative state opposed “deportable term “aliens” as ”); ment of what the statute .... mean[s] aliens:” (10 Wheat) Taylor, Elmendorf implicit read an limitation [W]e into the (“[T]he 6 L.Ed. 289 con view, before us. In our the stat- given by struction this Court to the consti

ute, light read in of the Constitution’s tution and laws the United States is demands, post limits an alien’s removal- received all as the true construc detention to a period period reasonably ...”). tion. necessary bring about that alien’s re- moval from the United States. does II. permit indefinite detention. government The places considerable 689,121 Id. at Supreme stock Court’s statement in statute, The clear text of the cou Zadvydas that: pled Supreme with the Court’s categorical We deal here with aliens who were ad- leaves interpretation, us little choice but to mitted to the United States but subse- onclude that applies to inadmis quently ordered removed. Aliens who statute, sible like Lin. individuals The on yet have not gained initial admission to face, its exceptions makes no for inadmissi country this present would very a differ- Supreme

ble aliens. The unquali Court’s question. ent holding provides fied that the statute “does permit not indefinite detention.” Id. It is 682, 533 U.S. at 121 S.Ct. 2491. In effect a principle statutory venerable of interpre government argues that tation “that where Legislature makes a should be interpreted differently for ad- plain provision, without making any excep mitted aliens and inadmissible aliens. But tion, the courts can make none.” French’s the wording of the statute does not allow (21 How.) Spencer, 228, Lessee v. 62 U.S. And, such a construction. as Justice Ken- 238, (1858) (citations omitted). 16 L.Ed. 97 nedy pointed dissent, out in his such a only We can assume that bifurcated construction untenable. Court intended to fidelity maintain to this Among Kennedy’s Justice chief criticisms 1231(a)(6) principle when it interpreted § were that in Zadvydas.1 [accepting the majority’s interpretation, then,

We thus abide the Supreme there are two possibilities, neither 1231(a)(6) interpretation of of which is sustainable. On the one hold Lin may subjected hand, not be to be that the majority’s that. rule indefinite detention. See Rivers v. Road- applies to categories both of aliens.... 1. The Court’s decision in Crowell v. The statute at issue in Crowell was not writ- Benson, 22, 285, ten, here, 285 U.S. 52 S.Ct. 76 L.Ed. as in a required manner which 598 does not counsel different result. consistent catego- treatment of two different 689, See 121 S.Ct. 2491. ries.

837 Fisher, v. 23 hand, logic Yamataya majority’s the other On (1903). 611, and remova- 47 L.Ed. inadmissible be that might differently. can be treated ble contrast, threshold of “an alien on the construction plausible not a Yet it is footing,” on a different initial stands limit to a time imply rights. Due Process regard not to [deportable aliens] but class one rel. Mez- Shaughnessy v. United States ex The text aliens]. [inadmissible another ei, 206, 212, 73 S.Ct. 97 L.Ed. possibility. this does not admit created an In Mezei (Kennedy, J. fiction,” this dis- “entry which extended respond majority did dissenting). within the to some individuals tinction or otherwise restrict critique who, of their as a result United States those only interpretation status, technically to be out- are deemed The result deportable. deemed individuals INA, version of the an earlier side. Under “the Kennedy observed: then is as Justice this fiction to interpreted we categories to both applies rule majority’s an alien the courts to treat ] authorize! Id. of aliens.” standing proceedings as one exclusion admission to gained Lin never Because entry, and therefore on the threshold argues the United protec- the constitutional not entitled to en banc governed our that his case those within the terri- provided tions Rison, v. in Barrerar-Echavarria States. jurisdiction torial (9th Cir.1995), we where 44 F.3d 1441 (9th F.3d Ashcroft, Ma of “ex- protracted approved Cir.2001). are, course, aware aliens. We cludable” denied Lin habeas The district court play territorial distinction” of the “basic subject he was grounds on the that relief “It well established immigration law: is and, attendantly, to our entry the fiction to protections that certain Ulti- in Barrera-Echavarria. inside the United persons to available government’s with the mately, problem the to aliens outside of unavailable States are court’s order is and the district Zadvydas, argument 533 borders.” geographic our interpreted in Barrera- An alien 121 2491. that we exists Instead longer no Echavarria country, and the who has entered inter- the are bound its respects in all to subject become statute, 8 now-applicable of the pretation part population, of its jurisdiction, and 1231(a)(6), to § which was added U.S.C. ... here alleged illegally to be although Re- Illegal Immigration the INA to be opportunity given an] be [must Act of Responsibility Immigrant form involving his questions upon heard (Divi- (IIRIRA), Pub.L. No. 104-208 1996 remain the United right to be and govern- The C), 110 Stat. 3009-546.2 sion States. "[tjhere inconsistency stat- between our argues deci no that our government 2. also The and our utory in Barrera-Echavarria Ashcroft, 1107- 257 F.3d sion in Ma v. Barrera- Cir.2001), statutory holding” in Ma because (9th Barrera- 22 reaffirmed 09 & n. case of an excluda- continuing applicability. The Echavania considered Echavarria’s entirely Ma, "the Ma considered companion ble alien whereas government is mistaken. already who have question of aliens different Zadvydas, an individual concerned case Ma, States, at 1109 country.” 257 F.3d op as entered the United who had entered acknowledgment there was that 22. Our en & n. the "threshold of initial posed to one at Ma, Barrera- Ma and between no contradiction we stated try.” In a footnote in ble, § (1994) ment asks us to read in light compare § 8 U.S.C. with 8 statutory holding in (2002), Barrera-Echa- U.S.C. there are substantial so, however, Doing va/rria. untenable. differences between the two statutes. Un- only This is not because of the absence of pre-IIRIRA INA, der the “excludable” in the INA’s provision earlier incarna- aliens were entitled to procedural pro- less 1231(a)(6), corresponds tion that “deportable” aliens, tection than but once also because IIRIRA introduced an entire an individual effected into the Unit- set legal concepts purporting of new States, unlawful, ed whether lawful or redefine the “basic territorial distinction” individual would procedural receive the play in immigration law. 533 protections deportation of a hearing as 694,121 U.S. at opposed to an exclusion hearing. 8 U.S.C. 1251(a)(1) (1994); also, see Landon v. brief, government implies Plasencia, operating central terms of the two 74 L.Ed.2d 21 (“[0]nly ‘entering’ functionally statutes are the same—name- exclusion.”). subject aliens are The ly, government suggests “entry” relationship same does not hold between and “admission” are interchangeable and being “inadmissible” and “deportable.” that “excludable” and “inadmissible” are INA, Under the amended an inadmissible interchangeable. suggestion, This howev- alien who is unable to er, demonstrate two fails to acknowledge the extent years of continuous presence within the which IIRIRA has altered the statutory States be removed from the landscape immigration law. United States with the same proce- limited longer INA is no denominated in are, dure afforded those who in the most “entry” terms of and “exclusion.” IIRIRA practical sense, literal and on the threshold replaced these terms with the broader con- initial entry. U.S.C. cept of 1101(a)(13), “admission.” Section 1225(b)(1)(A)(iii)(2002). which formerly “entry” defined “any coming of an alien into the United Despite major these statutory changes, foreign port ...,” from a place U.S.C. urges us to decide Lin’s 1101(a)(13)(1994),now defines “admission” case as he were an excludable alien. We to mean “the lawful entry of alien into simply ignore [an] cannot that “excludable” is the United States after inspection au- and no a longer term that any statutory by thorization an immigration officer,” import under the INA. Lin was ordered 1101(a)(13)(A) (2002). U.S.C. Concomi- removed on the basis of his inadmissibility. tantly, IIRIRA dropped the concept of His continued governed by detention is a “excludability” and now uses the defined statute that refers to inadmissible aliens term of “inadmissibility.” Although the and the Supreme Court has interpreted grounds being for deemed inadmissible are that statute preclude to indefinite deten- similar to those for being deemed exeluda- Zadvydas, tion.3 699, Echavarria was not reaffirming (7th There, tantamount to Cir.2001). 272 F.3d 989 Hoyte- latter, the entirely which dealt with Mesa, an Cuban, differ- a challenged Mariel his deten- ent statute and an falling individual into a exclusively tion on grounds. constitutional immigration different category. In other contrast, Id. at 990. In Lin seeks to avail words, we saw no need to reconcile the cases. Supreme himself of the interpretation Court's 1231(a)(6) Thus, § Zadvydas. of in we need- per In a opinion, recent curiam the Seventh not adopt determine reasoning whether to the approved protracted Circuit the detention of Hoyte-Mesa. Hoyte-Mesa excludable Ashcroft, alien. might Lin been III. That have S.Ct. 2491. a superceded under “excludable” deemed does not In consequence.4 INA is of no

version detention, it is im- Lin’s continued permit impli- may case not that Lin’s Similarly, by made the emphasize point to portant concerns cate the same do not Zadvydas in Supreme Court —we noimport. Zadvydas is individuals the in. presenting a situation now confront no authori- has offered special “or other circum- security national take may not litigant that a ty suggesting arguments might be special stances where statutory interpretation of a advantage detention.” preventive made for forms of consti- by principle the guided that was 121 S.Ct. 2491. Zadvydas, 533 U.S. litigant’s when that avoidance tutional Indeed, Supreme the Court’s reference the constitutional present case does just since months prescient was almost statutory the prompted problem in: down, was handed Zadvydas after Con- to abide obligation terpretation. Our for the passed legislation providing gress holding in the terror- mandatory suspected stringent more because all Uniting Strengthening and America ists. Congress a statute interpreted Required Providing Appropriate Tools See Patterson change pleases. as it Terrorism Act Intercept and Obstruct Union, 491 v. McLean Credit (USA PATRIOT), 107-56, tit. Pub.L. No. 105 L.Ed.2d (2002) (codified IV, § 412 as 8 U.S.C. (“Considerations decisis of stare 1226a(a)(2)). no view on express We statutory in the area of force special have simply under- legislation but note unlike context [ ] interpretation, holding. of our score the scope ... Con- interpretation of constitutional have alter what we free to gress remains in that our significant also done.”). re does not terpretation of from INS cus 1231(a)(6), that Lin be released Congress quire chose enacting we note that choice tody. Initially, “[t]he categories all of the of aliens to treat and imprisonment ... is not between chose to inter- Supreme Court same. The im large.’ It is between ‘living at [Lin] a constitutional to avoid pret release supervision under prisonment ignore cannot choose collision. We may not be violated.” holding of conditions or the language of 696, 121 Zadvydas, 533 U.S. de- Should Court. omitted).5 And, (citation pa order, under is in treatment cide that differential Lin’s statute, rameters established subject consti- it can amend if his permissible detention is continued But a tutional considerations. reasonably foreseeable. Id. removal is falls or rewrite rear-range the bur 699-701, 2491. He has 121 S.Ct. judicial, pre- not the legislative, within the reason believe provide “good den rogative. 1101(a)(38) (1994); incarnation, see 8 U.S.C. ed States. pre-IIRIRA 4. the INA's Under (a)(38) (2002). also U.S.C. certainly deemed have been Lin almost would attempted to enter alien. Lin an excludable conditions, supervised release having to the Com- 5. A after been violation Guam sea course, being re- may result in a detainee’s Islands. of Northern Mariana monwealth 700, 121 immigration the Mar- detained. purposes law For the 2491. the Unit- S.Ct. outside iana are considered Islands significant is no there likelihood of in obtaining travel documents accounts for reasonably removal in the foreseeable fu- protracted his detention. Lin disputes ture;” government must then “respond both assertions. These are ultimately fac- with evidence sufficient to rebut [the de- questions tual that we leave for the district showing.” Id. at tainee’s] S.Ct. court.

2491. REVERSED and REMANDED. the sake of uniform “[F]or administra- GOULD, Circuit Judge, concurring. courts,” tion in the federal and based on its join I noting that the basis for relief intent, reading Congress’s probable solely statutory, here is what Court created a “presumptively reasonable ordained, and that we have no occasion in period of detention” of six months. this case to address whether 680, 701, 121 The position of Lin have assertable consti- urges longer us to fashion a period for protections. tutional detainees who are removable on account of inadmissibility we can understand the RYMER, Judge, Circuit dissenting. policy doing. basis for so govern- The ment, however, though may Sensible sound to authority offers no con- strue the might guide what, same statute the same making way us in for for all all purposes, intents and inadmissible purposes, legislative is a aliens are differ- deter- London, reason, ent from mination. admitted aliens. For this Cf. 321(“The I disagree role of the that we must judiciary interpret 8 U.S.C. 1231(a)(6)’s limited to determining provision whether the proce- post-removal- dures meet the period essential standard of fair- detention of inadmissible aliens as ness ... and does not imposing having extend to the same “reasonable time” limita- procedures that merely displace congres- applies tion that to admitted aliens. In- sional policy.”). stead, choices of Based on the I take the Court at its applicability of to Lin and the word: while indefinite detention raises ser- reading in of a six-month ious constitutional questions in the case of limitation, we hold that the six-month pre- aliens who have been admitted to the Unit- sumption applies regard to Lin.6 The ed “[a]liens who yet have not upshot not, however, of this presumption is gained initial admission to this country release, but rather consideration of release present would very question.” different and appropriate conditions. Davis, 150 L.Ed.2d 653 This

Having spent considerably more than six is because aliens who have entered the detention, months in Lin is entitled to country have rights make a showing federal court that his aliens who have not entered do not. As removal to China reasonably is not fore- explained: seeable. prediction We make no whether Lin will be able to make such a The showing. distinction between an alien who alleges INS regularly China ac- has effected an entry into the United cepts the return of its citizens that have States and one who has never entered been ordered removed from the United runs throughout immigration law. It is States and that Lin’s failure cooperate well established that certain constitu- not, however, 6. This does statutorily specified absolve the in 90-day "removal statutory duty INS of physical to effect the 1231(a)(1)(A). period." § 8 U.S.C. removal of individuals ordered removed with-

841 a choice because the do have aliens. We persons available protections tional was discrete to ad- interpretation Court’s are unavailable States the United inside by It was driven the need bor- mitted aliens. geographic of our to aliens outside per- that problems to avoid constitutional the coun- an alien enters But once ders. that those who are admitted —but changes, for tain to legal circumstance try, the to those who are not admit- pertain all do not applies to Process Clause the Due avoid- By invoking in- ted. constitutional within the United “persons” doctrine, trying to the Court was aliens, presence their ance whether cluding yet assure con- lawful, unlawful, legislative intent temporary, or effectuate here is admitted aliens. application to stitutional permanent. of interpretation is a nuanced The result (citations 693, omit- 121 S.Ct. 2491 keeps being ap- that it from ted). unconstitutionally otherwise but plied avoid chose to the Court it alone. When a statute has differ- leaves for admitted aliens concerns constitutional necessary say it is not applications, ent contain a “rea construing the statute to by infirm; only the categorically it it is that Here, we are time” limitation. sonable constitutionally problematic aspects which aliens, for whom inadmissible dealing with that avoids subject are to the construction do not questions the same constitutional the problem. that the United It is well settled arise. constitutionally detain an ex- States illustrated Crowell v. This is well (inadmissible) indefinitely alien cludable 22, 285, Benson, L.Ed. 52 S.Ct. 76 accept his refuses to country origin of his (1932), Zadvydas treats as the which ex Shaughnessy v. United States return. avoiding a leading principle case on the Mezei, 73 S.Ct. rel. a serious statutory construction that raises (1953). Zadvydas distinguished L.Ed. there was concern. At issue constitutional reconsider its con and declined to Mezei and newly Longshoremen’s enacted Zadvydas, 533 legal authority. tinuing (Act Act Compensation Workers’ Harbor 693-94, 121 According 4, 1927, c. Stat. of March the same case we lack both ly, (codified §§ 901- at 33 U.S.C. as amended animated Zad- problem that constitutional 950)), deputy vested commissioners which limiting construction vydas’s Compen- Employees’ of the United States 1231(a)(6)’s to admitted application power “full and sation Commission aliens, interpret license to and the same ques- determine all authority to hear and 1231(a)(6)’s to inadmissible application compensation for workers’ tions” in claims plainly than it is restrictively aliens more that a recognized The Court benefits. written. if the would arise problem judicial foreclose were construed to I not read the majority, do Unlike facts, avoided jurisdictional in review of interpretation construing the statute to problem The Court’s Zadvydas “categorical.” just those implicit exception it said that make unqualified; was not opinion intact as to This left the statute very findings. “present differ- inadmissible it, I that is what findings. As see all other being inadmissible question” ent as well. did the Court the difference.” Id. “made all was serious constitu- that there recognized I 2491. Nor do believe about the indefinite but to tional doubt us “little choice” Zadvydas leaves had been ordered admitted aliens who inadmissible applies conclude (or deported), removed but avoided the Reading time limit on detention into construing the problem by provided have 1227[which immediate deportation an time limitation after which the implicit excludable aliens unless Attorney released if there is no the signifi- alien must be General concludes that it is practicable proper] cant likelihood removal the reason- would risk However, frustrating government’s ably ability future. foreseeable -and, control me, immigration policy and left the it seems to relations law— foreign with A judicial nations. statutory scheme—intact with respect requiring that excludable aliens be re have never to aliens who been admitted to leased into American society when nei States. ther their countries of origin any nor reasons, For stare decisis similar lacks country third might will admit them en majority the force in this case that courage the intransigence sort of Cuba to it. While true that stare ascribes deci- has exhibited in negotiations over the particular sway sis carries in areas of stat- See, refugees. Mariel e.g., Jean Nel utory interpretation Congress because can son, (11th Cir.1984) 727 F.2d alter, result, nothing Zadvydas’s about (en banc) (“[T]his approach would ulti construction for admitted aliens would mately losing result our control of our have alerted to the need to borders. A foreign leader could eventu respect amend to the ally compel grant physical us to admis “very question” different of inadmissible parole sion via aliens he wished aliens. by the simple expedient of sending them here and then refusing to take them persuaded I am not contrary by back.”), aff'd, dissent, Kennedy’s Justice which gives my 86 L.Ed.2d 664 In an area colleagues solace strikes me as a re- with sensitive foreign policy implica ductio ad absurdum rather than a fair tions, we must hesitate to interpret an gauge broadly required how we are ambiguous statutory scheme requir Indeed, read Zadvydas. Justice Breyer’s ing such a result. opinion for the majority emphasizes that “the cases before us require [do not] us to Barrera-Echavarria, 44 F.3d at 1448. political consider the authority -branches’ majority discounts Barrerar-ECha- to control into the United States. varria because the statute has changed ‘unprotected Hence we leave no spot in the ” and “excludable” aliens have become “in- Nation’s armor.’ admissible;” “entry” been replaced by (citation omitted). 121 S.Ct. 2491 “admission” and been redefined as “the this, Given I cannot see how lawful entry of [an] alien into the United leaves us no choice but to very create the States after inspection and authorization “unprotected spot in the Nation’s armor” officer,” an immigration compare 8 thought the Court leaving was 1101(a)(13), §§ U.S.C. with 8 Nation without. Id. 1101(a)(13)(A), §§ (2002); U.S.C.

Creating “unprotected spot in predates Barrerar-Echavarria Zadvydas. Nation’s armor” is what this ruling However, does. while Barrera-Echavarria’s recently explained We why in Barrera- statutory analysis may no longer be rele- Rison, (9th Echavarria v. vant, 44 F.3d 1441 its rationale is alive and well. IIRI- Cir.1995) (en banc): rationale, RA does not affect that because loosened, by presumptively than fetter discretion re- rather tightened, IIRIRA country quiring dis- their release into this after And procedures. removal it, prescribe the basis that Mezei’s six months. did not Mezei on tinguished the differ- nor does a serious constitutional doubt “made all excludable status it, 121 compel and we have no call to construe ence.” me, this means that both 2491. To to contain this limitation for are Barrera-Echavarria still Mezei and inadmissible aliens. law.1

good holding judicially Because otherwise so, is no need to con- being This there in immigration mandates a dramatic shift process to avoid due strue I policy, dissent. Aliens inadmissible aliens.2

concerns for freely resided as Lin have never

such they should country. Ideally,

within this possible to their

be returned as soon as However, happen this can’t country.

own allow it. For country

if their won’t own in Barrera-Echavarria explained

reasons me, Congress compelling

which are Attorney General discretion

given persons who are parole

to detain or country into this and whose coun-

admitted them back. I would not

try will not take Ashcroft, F.3d 1108 n. another records review. If release is not rec- 1. See Ma v. ommended, (9th Cir.2001) (treating Barrera-Echavar- a Review Panel interviews alien, analysis good law be- may representative present. ria 's constitutional who have a dictated cause "was The Panel then makes a recommendation and ”); Hoyte-Mesa .... v. Ash- makes Mezei the Executive Associate Commissioner (Mezei (7th Cir.2001) HQPDU croft, Thereafter, 272 F.3d the final determination. prior authority upholding and Seventh Circuit annually, review the case but the must alien's excludable aliens re- indefinite detention of changed may request alien review based on law). good main every three months and circumstances HQPDU respond days. within 90 must detained without HQPDU Inadmissible aliens are not may frequent reviews conduct more any process at all. An administrative review practicable, proper, prompt or removal procedure place. 8 C.F.R. 241.4. is in See good appears. other cause regulations provide for an initial records INS an alien is The decision whether to release prior to the ex- review of inadmissible aliens However, non-appealable. discretionary and (which period piration 90-day removal alien unless the the INS not release an cooperates until the alien in obtain- is tolled danger to that he is not a alien demonstrates ing necessary papers). The district travel risk, flight community and not or a before granting denying director’s considering that militate for numerous factors request set forth rea- alien’s for release must determi- against release. The Service’s If release is sons for continued detention. likely travel an alien is to receive nation that denied, may retain au- the district director continuation documents itself can warrant up re- thority to three months after the detention, and if it is established released period, but if the alien is not moval stage custody that travel docu- in a review to the within that time his case is referred Commissioner, forthcoming, or are ments can be obtained acting Executive Associate released, generally will not be the alien through Headquarters Post-Order Deten- (HQPDU). given then least tion Unit The alien is

Case Details

Case Name: Lin Guo Xi v. United States Immigration and Naturalization Service, Opinion

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 1, 2002

Citation: 298 F.3d 832

Docket Number: 01-35867

Court Abbreviation: 9th Cir.