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The U.S. Supreme Court has ruled that the Immigration and Nationality
Act does not authorize the continued detention, beyond the period of
time in which it is reasonably necessary to achieve their removal, of
non–U.S. citizens who have been found inadmissible and ordered removed.
The ruling in this case, Clark v. Martinez, applies the same
interpretation of INA section 241(a)(6) that the Court used in
Zadvydas v. Davis, 533 U.S. 678 (2001), which concerned
the indefinite detention of lawful permanent residents under final
deportation orders. Without contesting that inadmissible noncitizens
generally may have lesser rights than individuals who have been admitted
and granted lawful permanent residence, the Court rejected the
contention that this difference should justify giving a different
interpretation of the same statutory language concerning the authority
for detention beyond the removal period.
INA section 241 provides for a 90-day “removal
period” for noncitizens who have been ordered removed. Subsection
241(a)(6) allows for detention beyond the removal period for three
categories of noncitizens: those who are inadmissible, those who are
deportable based on specified grounds of removability, and those who
have been determined by the secretary of the Dept. of Homeland Security
to be a risk to the community or unlikely to comply with the order of
removal. The statute provides that in these cases, the individual “may
be detained beyond the removal period and, if released, shall be subject
to the terms [of an order of supervision].”
In Zadvydas, the Court determined that the
language of section 241(a)(6) authorized the detention of deportable
noncitizens only as long as continued detention was “reasonably
necessary” to bring about their removal from the U.S. In interpreting
the statutory language, the Court noted that serious constitutional
questions would be raised were the statute read so as to permit the
indefinite detention of noncitizens who had been admitted to the U.S.
Reading the statute more narrowly, the Court concluded that “once
removal is no longer reasonably foreseeable, continued detention is no
longer authorized.” 533 U.S. at 699. The Court further found that there
is a presumption that removal can be accomplished within a six month
period, after which a noncitizen is eligible for conditional release if
he or she can demonstrate that there is “no significant likelihood of
removal in the reasonably foreseeable future.” Id. At 701.
Clark v. Martinez presented the issue of
whether the Court’s reading in Zadvydas of section 241(a)(6),
with its limitations on post–removal period detention, apply to
inadmissible noncitizens as well as to noncitizens who are removable.
Writing for a majority of seven justices, Justice Scalia concluded that,
regardless of whether the constitutional concerns that were present in
Zadvydas are a factor in this case, the same statutory language
must be given the same meaning regardless of the noncitizen to whom it
applies. Justice Thomas and Chief Justice Rehnquist dissented, urging
the Court to distinguish Zadvydas from this case.
Clark v.
Martinez, No. 03-878 (U.S. Supreme Court, Jan. 12, 2005).
By
Linton Joaquin, NILC
executive director
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