In 5-to-4 vote, U.S. Supreme Court develops procedural framework for meeting due process standards with respect to removable aliens held in custody where government is having difficulty in finding nations willing to accept them


In 5-to-4 vote, U.S. Supreme Court develops procedural framework for meeting due process standards with respect to removable aliens held in custody where government is having difficulty in finding nations willing to accept them
When an alien who enters the U.S. but no longer has the legal right to remain, the Immigration and Naturalization Service (INS) institutes removal proceedings. Under the statutes, the INS may hold the alien in custody for a ninety-day removal period. If the INS has been unable to make adequate arrangements for the alien within that period, the statute authorizes further detention or supervised release which is open to administrative review.
Kestutis Zadvydas is a resident alien. He was born in a German displaced persons camp, seemingly of Lithuanian parents. Because of his criminal record, U.S. authorities ordered his deportation. Unfortunately, neither Germany nor Lithuania was willing to take Zadvydas because he could not show that he was a citizen of either nation. The INS was also unsuccessful in trying to send him to the Dominican Republic, his wife’s native country.
After the ninety-day period had run out and Zadvydas was still in custody, he petitioned for a writ of habeas corpus under 28 U.S.C. Section 2241. The district court issued the writ. It held that the government would never be able to remove Zadvydas, thus making his loss of freedom unconstitutionally permanent. The Fifth Circuit, however, reversed, reasoning that Zadvydas’ detention did not contravene the Constitution, eventual deportation was not impossible, the government was still making good faith efforts to remove him and there was administrative review of his detention.


Kim Ho Ma (Ma), born in Cambodia, is a resident alien to be removed based on an aggravated felony conviction. Finding himself still in custody after the ninety-day period had run out, Ma successfully sued out a habeas writ. The court reasoned that post-removal-period detention violated the Constitution unless there is a realistic chance of actual removal. That did not exist for Ma because Cambodia lacked a repatriation treaty with the U.S. The Ninth Circuit affirmed. It allowed for a reasonable period of detention beyond ninety days but held that the lack of a repatriation treaty had caused that period to run out. The U.S. Supreme granted certiorari and then vacates and remands in a 5-to-4 vote.
First, the Court affirms that statutory changes in the immigration laws did not purport to affect Section 2241 habeas proceedings. They continue to remain available to obtain judicial review of the legality of petitioners’ detentions, whatever limitations the immigration laws may seem to impose.

In light of constitutional mandates, the courts have to see a reasonable time limit as implicit in the removal setting rather than recognize the possibility of indefinite detention. The present proceedings are not criminal and punitive but civil in nature. The government has produced no justification strong enough to support indefinite civil detention under the INS statutes.
The government developed two justifications for continued detention: (1) prevention of flight; and (2) protection of the community. The first falls short where removal seems a remote possibility. The courts have upheld the second ground of preventive detention only where some special factor such as mental illness combines with dangerousness. Here, the aliens’ removal status has no connection to dangerousness. Moreover, the limited availability of administrative review where the alien must show that he or she is not dangerous coupled with the government’s theory that no judicial review is available raises serious constitutional concerns.
Once an alien enters the U.S., he triggers Due Process Clause protections whether his or her presence is lawful or unlawful, permanent or temporary. Congress’ plenary power over immigration law does not require the courts to ignore its constitutional limits. An alien’s liberty interest is powerful enough to create major constitutional difficulties with indefinite detention. Congress might have saved the day by clearly and intentionally give the Attorney General the power to detain indefinitely an alien ordered to be removed but the majority is unable to find any such indication in the legislative history or in similar related statutes.
The federal habeas statutes grant the federal courts the power not only to decide whether detention after the ninety-day period complies with statute but also to rule on whether the detention is vital to make sure the alien is available at the time of removal. With no prospect of removal, the courts should find further detention unreasonable.
If removal is foreseeable, dangerousness remains relevant to the reasonableness of continued confinement. Other factors include the Executive Branch’s greater expertise on immigration matters, the administrative needs and concerns of the INS and the Nation’s need to speak with one voice on immigration.
In the majority’s view, practicality suggests judicial recognition of a presumptively reasonable detention period. Congress probably did not expect that every single removal could take place within ninety days nor would it likely have deemed a detention period of more than six months to square with the Constitution. For the sake of uniformity, the Court then decides that six months is a proper presumptive period. When the six months have expired and a detained alien proves there is no meaningful probability of removal in the rationally foreseeable future, the government must come up with enough evidence to rebut that showing.
“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.’ (Cit.) But this standard would seem to require an alien seeking release to show the absence of any prospect of removal ‑‑ no matter how unlikely or unforeseeable ‑‑ which demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. (Cit.) But its conclusion may have rested solely upon the ‘absence’ of an ‘extant or pending’ repatriation agreement without giving due weight to the likelihood of successful future negotiations. (Cit.) Consequently, we vacate the decisions below and remand both cases for further proceedings consistent with this opinion.” [2505]
Citation: Zadvydas v. Davis, 121 S.Ct. 2491, 150 L.Ed.2d 653 (June 28, 2001).
 



Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.

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