Lead Opinion
delivered the opinion of the Court.
When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien’s removal during a subsequent 90-day statutory “removal period,” during which time the alien normally is held in custody.
A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says:
“An alien ordered removed [1] who is inadmissible .'.. [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision . . . .” 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V).
In these cases, we must decide whether this post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien’s removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit “reasonable time” limitation, the application of which is subject to federal-court review.
A
The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. 66 Stat. 204, as added and amended, 110 Stat. 3009-585, 8 U. S. C. §§ 1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. § 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government “may” continue to detain an alien who still remains here or release that alien under supervision. § 1231(a)(6).
Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien’s records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR §§ 241.4(c)(1), (h), (k)(l)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. § 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. §241.4(i). In making this decision, the panel will consider, for example, the alien’s disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. § 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. § 241.4(e). And the alien must demonstrate “to the satisfaction of the Attorney General” that he will pose no danger or risk of flight.
B
1
We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since.
Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years’ imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. § 1261(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable).
In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the .Dominican Republic (Zadvydas’ wife’s country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas’ effort to obtain Lithuanian citizenship based on his parents’ citizenship; Zadvydas’ reapplication is apparently still pending.
The INS kept Zadvydas in custody after expiration of the removal period. In September 1995, Zadvydas filed a petition for a writ of habeas eorpus under 28 U. S. C. § 2241 сhai-
The Fifth Circuit reversed this decision. Zadvydas v. Underdown,
2
The second case is that of Kim Ho Ma. Ma was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months’ imprisonment. He served two years, after which he was released into INS custody.
In light of his conviction of an “aggravated felony,” Ma was ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F) (defining certain violent crimes as aggravated felonies), 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early 1999, but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was “unable to conclude that
In 1999, Ma filed a petition for a writ of habeas corpus under 28 U. S. C. §2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma’s and about 100 similar cases together, issued a joint order holding that, the Constitution forbids post-removal-period detention unless there is “a realistic chance that [the] alien will be deported” (thereby permitting classification of the detention as “in aid of deportation”). Binh Phan v. Reno,
The Ninth Circuit affirmed Ma’s release. Kim Ho Ma v. Reno,
3
Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma’s continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac Ho v. Greene,
We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. §2241, confers jurisdiction upon the federal courts to hear these cаses. See § 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held “in custody in violation of the Constitution or laws i . . of the United States”). Before 1952, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Heikkila v. Barber,
More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V), simply forbids courts to construe that section “to create any . . . procedural right or benefit that is legally enforce
Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that “no сourt shall.' have jurisdiction to review” decisions “specified ... to be in the discretion of the Attorney General.” The aliens here, however, do not seek review of the Attorney General’s exercise of discretion; rather, they challenge the extent of the Attorney General’s authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e.g., § 1226(e) (applicable to certain detention-related decisions in period preceding entry of final removal order); § 1231(a)(4)(D) (applicable to assertion of causes or claims under §1231(a)(4), which is not at issue here); §§ 1252(a)(1), (a)(2)(C) (applicable to judicial review of “final order[s] of removal”); § 1252(g) (applicable to decisions “to commence proceedings, adjudicate cases, or execute removal orders”).
We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges. to post-removal-period detention. And we turn to the merits of the aliens’ claims.
H-1 H-l
The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien “who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V); see also 8 CFR § 241.4(a) (2001). It says that an alien who falls into one of these cate
The Government argues that the statute means what it literally says. It sets no “limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained.” Brief for Petitioners in No. 00-38, p. 22. Hence, “whether to continue to detain such an alien and, if so, in what circumstances and for how long” is up to the Attorney General, not up tó the courts. Ibid.
“[I]t is a cardinal principle” of statutory interpretation, however, that when an Act of Congress raises “a serious doubt” as to its constitutionality, “this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson,
A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to “de-priv[e]” any "person ... of... liberty ... without due process of law.” Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana,
The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detention — at least as administered under this statute. The statute, says the Government, has two regulatory goals: “ensuring the appearance of aliens at future immigration proceedings” and “[preventing danger to the community.” Brief for Respondents in No. 99-7791, p. 24. But by definition the first justification — preventing flight — is weak or nonexistent where removal seems a remote possibility at best. As this Court said in Jackson v. Indiana,
The second justification — protecting the community — does not necessarily diminish in force over time. But we have
The civil confinement here at issue is not limited, but potentially permanent. Cf. Salerno, supra, at 747 (noting that “maximum length of pretrial detention is limited” by “stringent” requirements); Carlson v. Landon,
Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government’s view) significant later judicial review. Compare 8 CFR § 241.4(d)(1) (2001) (imposing burden of proving nondangerousness upon alien) with Foucha, supra, at 82 (striking down insanity-related detention for that very reason). This Court has suggested, however, that the Constitution may well preclude granting “an administrative body the unreviewable authority to make determinations implicating fundamental rights.” Superintendent, Mass. Correctional Institution at Walpole v. Hill,
The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to Shaughnessy v. United States ex rel. Mezei,
The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod,
In Wong Wing, supra, the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (Scalia, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because “all persons within the territory of the United States are entitled to the protection” of the Constitution.
In light of this critical distinction between Mezei and the present cases, Mezei does not offer the Government significant support, and we need not consider the aliens’ claim that subsequent developments have undermined Mezei’s, legal authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief fоr Lawyers’ Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy’s limitation of
The Government also looks for support to cases holding that Congress has “plenary power” to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-7791, at 17, 20 (citing Harisiades v. Shaughnessy,
Nor do the cases before us require us to consider the political branches’ authority to control entry into the United States. Hence we leave no “unprotected spot in the Na
Finally, the Government argues that, whatever liberty interest the aliens possess, it is “greatly diminished” by their lack of a legal right to “liv[e] at large in this country.” Brief for Respondents in No. 99-7791, at 47; see also post, at 703 (Scalia, J., dissenting) (characterizing right at issue as “right to release into this country”). The choice, however, is not between imprisonment and the alien “living at large.” Brief for Respondents in No. 99-7791, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR §241.5 (2001) (establishing conditions of release after removal period). And, for the reasons we have set forth, we believe that an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (Kennedy, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent.
B
Despite this constitutional problem, if “Congress has made its intent” in the statute “clear, 'we must give effect to that intent.’ ” Miller v. French,
The Government points to the statute’s word “may.” But while “may” suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word “may” is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C) (1994 ed., Supp. V) (“If no country is willing to receive” a terrorist alien ordered removed, “the Attorney General may, notwithstanding any other provision of law, retain the alien in custody” and must review the detention determination every six months).
The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see supra, at 691; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point.
The Government also points to the statute’s history. That history catalogs a series of changes, from an initial period (before 1952) when lower courts had interpreted statutory
In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, § 439(c), 110 Stat. 1277. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§303, 305,110 Stat. 3009-585, 3009-598 to 3009-599; 8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V).
> — *
The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government’s view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. § 2241(c)(3) (granting courts authority to determine whether detention is “in violation of the .. . laws ... of the United States”). In doing so the courts carry out what this Court has described as the “histоric purpose of the writ,” namely, “to relieve detention by executive authorities without judicial trial,” Brown v. Allen,
In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute’s basic purpose, namely, assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no
We recognize, as the Government points out, that review must take appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation’s need to “speak with one voice” in immigration matters. Brief for Respondents in No. 99-7791, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.
Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty Corporation v. LTV Corp.,
We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit
While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened thе removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United States v. Wiikovich, O. T. 1956, No. 295, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 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 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.
The Fifth Circuit held Zadvydas’ continued detention lawful as long as “good faith efforts to effectuate... deportation continue” and Zadvydas failed to show that deportation will prove “impossible.”
It is so ordered.
Dissenting Opinion
with whom Justice Thomas joins, dissenting.
I join Part I of Justice Kennedy’s dissent, which establishes the Attorney General’s clear statutory authority to detain criminal aliens with no specified time limit. I write separately because I do not believe that, as Justice Kennedy suggests in Part II of his opinion, there may be some situations in which the courts can order release. I believe that in both Zadvydas v. Davis, No. 99-7791, and Ashcroft v. Ma, No. 00-38, a “careful description” of the substantive right claimed, Reno v. Flores,
Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. The Chinese Exclusion Case,
The Court expressly declines to apply or overrule Mezei, ante, at 694, but attempts to distinguish it — or, I should rather say, to obscure it in a legal fog. First, the Court claims that “[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Ante, at 693. True enough, but only where that distinction makes perfect
Mezei thus stands unexplained and undistinguished by the Court’s opinion. We are offered no justification why an alien under a valid and final order of removal — which has totally extinguished whatever right to presence in this country he possessed — has any greater due process right to be released into the country than an alien at the border seeking entry.
Notes
The Court also cites Landon v. Plasencia,
Dissenting Opinion
with whom The Chief Justice joins, and with whom Justice Scalia and Justice Thomas join as to Part I, dissenting.
The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation’s most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court’s ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court’s own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowl
I
The Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. (1994 ed. and Supp. V), is straightforward enough. It provides:
“An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (8).” 8 U. S. C. § 1281(a)(6) (1994 ed., Supp. V).
By this statute, Congress confers upon the Attorney General discretion to detain an alien ordered removed. It gives express authorization to detain “beyond the removal period.” Ibid. The class of removed aliens detainable under the section includes aliens who were inadmissible and aliens subject to final orders of removal, provided they are a risk to the community or likely to flee. The issue to be determined is whether the authorization to detain beyond the removal period is subject to the implied, nontextual limitation that the detention be no longer than reasonably necessary to effect removal to another country. The majority invokes the canon of constitutional doubt to read that implied term into the statute. One can accept the premise that a substantial constitutional question is presented by the prospect of lengthy, even unending, detention in some instances; but the statutory construction the Court adopts should be rejected in any event. The interpretation has no basis in the lan
The Court, it is submitted, misunderstands the principle of constitutional avoidance which it seeks to invoke. The majority gives a brief bow to the rule that courts must respect the intention of Congress, ante, at 696, but then waltzes away from any analysis of the language, structure, or purpose of the statute. Its analysis is not consistent with our precedents explaining the limits of the constitutional doubt rule. The rule allows courts to choose among constructions which are “fairly possible,” Crowell v. Benson,
The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations, see ante, at 701, makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repаtriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens’ return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It
Congress, moreover, was well aware of the difficulties confronting aliens who are removable but who cannot be repatriated. It made special provisions allowing them to be employed, a privilege denied to other deportable aliens. See § 1231(a)(7) (providing an “alien [who] cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien” still remains eligible for employment in the United States). Congress’ decision to ameliorate the condition of aliens subject to a final order of removal who cannot be repatriated, but who need not be detained, illustrates a balance in the statutory design. Yet the Court renders the other side of the balance meaningless. The risk to the community posed by a removable alien is a function of a variety of circumstances, circumstances that do not diminish just because the alien cannot be deported within some foreseeable time. Those circumstances include thе seriousness of the alien’s past offenses, his or her efforts at rehabilitation, and some indication from the alien that, given the real prospect of detention, the alien will conform his or her conduct. This is the purpose for the periodic review of detention status provided for by the regulations. See 8 CFR §241.4 (2001). The Court’s amendment of the statute reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention, see ante, at 699 (citing 1 E. Coke, Institutes *70b), and reads out as well any meaningful structure for supervised release.
The majority is correct to observe that in United States v. Witkovich,
The majority’s unanchored interpretation ignores another indication that the Attorney General’s detention discretion was not limited to this truncated period. Section 1231(a)(6) permits continued detention not only of removable aliens but also of inadmissible aliens, for instance those stopped at the border before entry. Congress provides for detention of both categories within the same statutory grant of authority. Accepting the majority’s interpretation, then, there are two possibilities, neither of which is sustainable. On the one hand, it may be that the majority’s rule applies to both categories of aliens, in which case we are asked to assume that Congress intended to restrict the discretion it could confer upon the Attorney General so that all inadmissible aliens must be allowed into our community within six months. On the other hand, the majority’s logic might be that inadmissible and removable aliens can be treated differently. Yet it is not a plausible construction of § 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility. As a result, it is difficult to see why “[ajliens who have not yet gained initial admission
Congress’ power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature’s considerable authority over immigration matters. See, e. g., Wong Wing v. United States,
The majority’s interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive’s discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. Brief for Respondents in No. 99-7791, p. 49. The result of the Court’s rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. Ibid. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. Ibid. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nation
The cases which the Court relies upon to support the imposition of presumptions are inapposite. The rule announced in Cheff v. Schnackenberg,
It is to be expected that from time to time a foreign power will adopt a truculent stance with respect to the United States and other nations. Yet the Court by its time limit, or presumptive time limit, goes far to undercut the position of the Executive in repatriation negotiations, thus ill serving the interest of all foreign nationals of the country concerned. Law-abiding aliens might wish to return to their home country, for instance, but the strained relationship caused by the difficult repatriation talks might prove to be a substantial obstacle for these aliens as well.
In addition to weakening the hand of our Government, court ordered release cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Corut’s new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable. An alien ordered deported also has less incentive to cooperate or to facilitate expeditious removal when he has been released, even on a supervised basis, than does an alien held at an Immigration and Naturalization Service (INS) detention facility. Neither the alien nor his family would find any urgency in assisting with a petition to other countries to accept the alien back if the alien could simply remain in the United States indefinitely.
The risk to the community posed by the mandatory release of aliens who are dangerous or a flight risk is far from insubstantial; the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself. The Government cites statistical studies showing high recidivism rates for released aliens. One Government Accounting Office study cited by Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat.. 1214, put the figure as high as 77 percent. 142 Cong. Rec. 7972 (1996); Brief for Respondents in
Any suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist, as determined by the many factors set forth in the regulations. See 8 CFR § 241.4(f) (2001). Underworld and terrorist links are subtle and may be overseas, beyond our jurisdiction to impose felony charges. Furthermore, the majority’s rationale seems to apply to an alien who flees prosecution or escapes from custody in some other country. The fact an alien can be deemed inadmissible because of fraud at the time of entry does not necessarily distinguish his or her case from an alien whose entry was legal. Consider, for example, a fugitive alien who enters by fraud or stealth and resides here for five years with significant ties to the community, though still presenting a dаnger; contrast him with an alien who entered lawfully but a month later committed an act making him removable. Why the Court’s rationale should apply to the second alien but not the first is not apparent.
The majority cannot come to terms with these distinctions under its own rationale. The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal. See ante, at 699-700. That standard is not only without sound basis in the statutory structure, but also is not susceptible to customary judicial inquiry. Cf. INS v. Aguirre-Aguirre,
This rule of startling breadth invites potentially perverse results. Because other nations may refuse to admit aliens who have committed certain crimes — see, e. g., Brief for Petitioner in No. 99-7791, at 19 (“Lithuanian law precludes granting of citizenship to persons who, before coming to Lithuania, have been sentenced in another state to imprisonment for a deliberate crime for which criminal liability is imposed by the laws of the Republic of Lithuania” (citations and internal quotation marks omitted)) — often the aliens who have committed the most serious crimes will be those who may be released immediately under the majority’s rule. An example is presented in the case of Saroeut Ourk, a Cambodian alien determined to be removable and held pending deportation. See Ourk v. INS, No. 00-35645 (CA9, Sept. 18, 2000), cert. pending, No. 00-987. Ourk was convicted of rape by use of drugs in conjunction with the kidnaping of a 13-year-old girl; after serving 18 months of his prison term, he was released on parole but was returned to custody twice more for parole violations. Pet. for Cert, in No. 00-987, pp. 4-5. When he was ordered deported and transferred to the custody of the INS, it is no surprise the INS determined he was both a flight risk and a danger to the community. Yet the Court of Appeals for the Ninth Circuit concluded, based on its earlier decision in Kim Ho Ma v. Reno,
The majority’s rule is not limited to aliens once lawfully admitted. Today’s result may well mandate the release of those aliens who first gained entry illegally or by fraud, and, indeed, is broad enough to require even that inadmissible and excludable aliens detained at the border be set free in our community. In Rosales-Garcia v. Holland,
The majority’s confidence that the Judiciary will handle these matters “with appropriate sensitivity,” ante, at 696, 700, allows no meaningful category to confine or explain its own sweeping rule, provides no justification for wresting this sovereign power away from the political branches in the first place, and has no support in judicially manageable standards for deciding the foreseeability of removal.
It is curious that the majority would approve of continued detention beyond the 90-day period, or, for that matter, during the 90-day period, where deportation is not reasonably foreseeable. If the INS cannot detain an alien because he is dangerous, it would seem irrelevant to the Constitution or to the majority’s presumption that the INS has detained the alien for only a little while. The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does. The Court cannot bring itself to acknowledge this established proposition. Likewise, it is far from evident under the majority’s theory why the INS can condition and supervise the release of aliens who are not removable in the reasonably foreseeable future, or why “the alien may no doubt be returned to custody upon
The Court today assumes a role in foreign relations which is unprecedented, unfortunate, and unwise. Its misstep results in part from a misunderstanding of the liberty interests these aliens retain, an issue next to be discussed.
III
The aliens’ claims are substantial; their plight is real. They face continued detention, perhaps for life, unless it is shown they no longer present a flight risk or a danger to the community. In a later case the specific circumstances of a detention may present a substantial constitutional question. That is not a reason, however, for framing a rule which ignores the law governing alien status.
As persons within our jurisdiction, the aliens are entitled to the protection of the Due Process Clause. Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention. The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however. See, e. g., Mathews v. Diaz,
The majority likely is correct to say that the distinction between an alien who entered the United States, as these aliens did, and one who has not, “runs throughout immigration law.” Ante, at 693. The distinction is not so clear as it might seem, however, and I doubt it will suffice to confine the rationale adopted by the majority. The case which often comes to mind when one tests the distinction is Shaughnessy v. United States ex rel. Mezei,
Here the majority says the earlier presence of these aliens in the United States distinguishes the cases from Mezei. For reasons given here it is submitted the majority is incorrect in its major conclusions in all events, so even if it were assumed these aliens are in a class with more rights than Mezei, it makes no difference. For purposes of this dissent it is not necessary to rely upon Mezei.
That said, it must be made clear these aliens are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status. The due process analysis must begin with a “careful description of the asserted right.” Reno v. Flores,
It is true the Court has accorded more procedural protections to those aliens admitted to the country than those stopped at the border, observing that “a continuously present alien is entitled to a fair hearing when threatened with
Still, both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious. Where detention is incident to removal, the detention cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish. See Wong Wing v. United States,
Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large. The proce
By regulations, promulgated after notice and comment, the Attorney General has given structure to the discretion delegated by the INA in order to ensure fairness and regularity in INS detention decisions. First, the INS provides for an initial postcustody review, before the expiration of the 90-day removal period, at which a district director conducts a record review. 8 CFR § 241.4 (2001). The alien is entitled to present any relevant information in support of release, and the district director has the discretion to interview the alien for a personal evaluation. § 241.4(h)(1). At the end of the. 90-day period, the alien, if held in custody, is transferred to a postorder detention unit at INS headquarters, which in the ordinary course will conduct an initial custody review within three months of the transfer. § 241.4(k)(2)(ii). If the „INS determines the alien should remain in detention, a two-member panel of INS officers interviews the alien and makes a recommendation to INS headquarters. §§241.4(i)(l)-(3). The regulations provide an extensive, nonexhaustive list of factors that should be considered in the recommendation to release or further detain. Those include: “[t]he nature and number of disciplinary infractions”; “the detainee’s criminal conduct and criminal convictions, including consideration of the nature and severity of the alien’s convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism, and other criminal history”; “psychiatric and psychological reports pertaining to the detainee’s mental health”; “[ejvidence of rehabilitation”; “[fjavorable factors, including ties to the United States such as the number of close relatives”; “[pjrior immigration violations and history”; “[t]he likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes”; and any other probative information. § 241.4(f). Another review must occur within one year, with mandatory evaluations each year thereafter; if the alien re
In this context the proper analysis can be informed by our cases involving parole-eligibility or parole-revocation determinations. In Morrissey v. Brewer,
While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer dangerous, that question could be adjudicated in a later case raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining release are far from insurmountable. Statistics show that between February 1999 and mid-November 2000 some 6,200 aliens were provided custody reviews before expiration of the 90-day removal period, and of those aliens about 3,380
Like the parolee in Morrissey, who was aware of the conditions of his release, the aliens in the instant cases have notice, constructive or actual, that the INA imposes as a consequence of the commission of certain crimes not only deportation but also the possibility of continued detention in cases where deportation is not immediately feasible. And like the prisoner in Board of Pardons v. Allen, who sought federal-court review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See
This is not the posture of the instant cases, however. Neither Zadvydas nor Ma argues that the Attorney General has applied the procedures in an improper planner; they challenge only the Attorney General's authority to detain at all where removal is no longer foreseeable. The Government has conceded that habeas jurisdiction is available under 28 U. S. C. §2241 to review an alien's challenge to detention following entry pf a final order of deportation, Brief for Respondents in No. 99 — 7791, at 9-10, n. 7; Tr. of Oral Arg. 59, although it does not detail what the nature of the habeas review would be. As a result, we need not decide today whether, and to what extent, a habeas court could review the Attorney General’s determination that a detained alien continuеs to be dangerous or a flight risk. Given the undeniable deprivation of liberty caused by the detention, there might be substantial questions concerning the severity nec
In all events, if judicial review is to be available, the inquiry required by the majority focuses on the wrong factors. Concepts of flight risk or future dangerousness are manageable legal categories. See, e. g., Kansas v. Hendricks,
For these reasons, the Court should reverse the judgment of the Court of Appeals for the Ninth Circuit and affirm the judgment of the Court of Appeals for the Fifth Circuit. I dissent.