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).
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