Xi v. INS: 9th Circuit Rules Indefinite Detention of Inadmissible Noncitizen Unlawful

IMMIGRATION LAW & POLICY

Arrest and Detention

XI V. INS: 9TH CIRCUIT RULES INDEFINITE DETENTION OF INADMISSIBLE NONCITIZEN UNLAWFUL
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled, in a case titled Xi v. INS, that the Immigration and Nationality Act does not authorize the indefinite detention of inadmissible noncitizens who are subject to a final order of removal.

The decision follows the Supreme Court’s ruling in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, a case concerning noncitizens who had held lawful permanent resident status, the Court held that section 241(a)(6) of the INA does not permit the detention of noncitizens subject to final orders once execution of the removal order is no longer reasonably foreseeable (for more regarding Zadvydas, see "Supreme Court Holds That INA Does Not Authorize Indefinite Detention," Immigrants' Rights Update, Aug. 31, 2001, p. 10).

Writing for the majority, Judge Margaret McKeown found that Xi v. INS is controlled by Zadvydas, since the issue in question concerns the interpretation of the same statutory language. Judge Pamela Ann Rymer filed a dissent. In her view, because inadmissible noncitizens do not have the same constitutional rights as LPRs, in cases involving inadmissible noncitizens there is no need to narrowly construe the statute to avoid constitutional concerns.

Xi v. INS, No. 01-35867 (9th Cir. Aug. 1, 2002).