Zadvydas v. Davis, et al.: Supreme Court Holds That INA Does Not Authorize Indefinite Detention

IMMIGRATION LAW & POLICY

Judicial Review of Immigration Decisions

ZADVYDAS V. DAVIS, ET AL.: SUPREME COURT HOLDS THAT INA DOES NOT AUTHORIZE INDEFINITE DETENTION
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The United States Supreme Court has ruled that the Immigration and Naturalization Service cannot detain indefinitely individuals who have been ordered removed but cannot be repatriated to their homelands. In reaching the ruling, the Court read an "implicit 'reasonable time' limitation" in the statute under which the INS had been indefinitely detaining such persons after the 90-day removal period. Under that reading, the Court held, individuals may be detained only for "periods reasonably necessary to bring about [their] removal from the U.S. [The statute] does not permit indefinite detention."

With the caveat that not all individuals must be released after six months, for the sake of uniform administration by the federal courts, the Court set a limit of six months as the time period in which removals must be accomplished. After that time, once the individual "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," the government must rebut that showing in order to continue his or her detention.

After an individual has been ordered removed, the INS has 90 days to remove the individual. However, repatriation is difficult to accomplish for some individuals, such as those without nationalities or persons born in countries that do not have repatriation treaties with the U.S. (such as Cuba or Vietnam). The INS's policy has been to hold such individuals in custody while the agency sought their acceptance by other countries. If no country agreed to accept them, individuals could, under the "post-removal-period detention statute" (8 U.S.C. section 1231(a)(6)), be held in INS custody indefinitely.

The post-removal-period detention statute applies to individuals who are inadmissible or removable because they have committed crimes or violated nonimmigrant status requirements or for reasons of security or foreign policy. It also applies to individuals whom the attorney general has determined are a risk to the community or are unlikely to comply with the removal order. After the 90-day removal period, the statute provides that the government "may" continue an individual's detention or release him or her under supervision. The statute's implementing regulations further require INS district directors to review the individual's records to decide whether he or she should be detained or released after the 90-day period expires. If the district director decides to continue an individual's detention, the INS conducts another review of the decision after three months. Thereafter, a panel of INS officials must decide whether to release the individual under supervision or further detain him or her. Under the regulations, in order to secure release, the detainee must show, "to the satisfaction of the attorney general," that he or she poses neither danger to the community nor risk of flight.

The Supreme Court decision consolidates and adjudicates appeals in two cases, one arising in the Fifth Circuit Court of Appeals and the other in the Ninth Circuit. Zadyvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), and Kim Ho Ma v. Reno, 208 F.3d 815 (9th Cir. 2000). Both cases involve lawful permanent residents who, by filing petitions under the federal habeas corpus statute (28 U.S.C. § 2241), challenged their detention by the INS beyond the 90-day removal period. In Zadyvydas's case, difficulties in establishing his nationality accounted for his continued detention, while for Ma, the lack of a repatriation treaty with the country of his nationality (Cambodia) kept him in INS custody. The Fifth Circuit ruled that Zadyvydas's continued detention did not violate the Constitution, and the Ninth Circuit reached the opposite conclusion in affirming Ma's release.

Before turning to the merits of the appeals, the Supreme Court first addressed jurisdictional issues. The government argued that two statutory provisions, 8 U.S.C. sections 1231(h) and 1252(a)(2(B)(ii), preclude federal courts' jurisdiction to review Zadyvydas's and Ma's cases. The court rejected both arguments, noting that section 1231(h) simply forbids courts from construing "that section 'to create any . . . procedural right or benefit that is legally enforceable.'" As for section 1252(a)(2(B)(ii), which proscribes federal court review of decisions specified to be in the discretion of the attorney general, the Court noted that Zadyvydas and Ma do not seek review of the attorney general's exercise of discretion. Rather, the Court held, they are challenging the extent of the attorney general's authority under the post-removal-period detention statute. Noting that the "extent of that authority is not a matter of discretion," the Court found that neither provision cited in the government's jurisdictional challenges affect the availability of the federal habeas statute to initiate statutory and constitutional challenges to post-removal-period detention.

Citing a "cardinal principle" of statutory interpretation-that when an act raises serious doubts as to its constitutionality, a court should try to see if a construction that avoids the constitutional question is possible-the Supreme Court read an implicit limitation into the statute. As noted above, it thus held that post-removal-period detention must be limited to a period reasonably necessary to bring about removal of individuals from the U.S.

The Supreme Court began its analysis by observing that a statute permitting indefinite detention would raise serious constitutional problems. Noting that protection from imprisonment without due process of law lies at the heart of the Fifth Amendment's Due Process Clause, the Court reviewed examples of government detention it has found permissible. For example, government detention does not violate the Fifth Amendment when it is ordered in criminal proceedings with adequate procedural protections. Detention is also permissible only in "special and 'narrow' nonpunitive 'circumstances,'" in which special justification, "such as harm-threatening mental illness, outweighs the individual's constitutionally protected" right to avoid physical restraint.

The Court went on to note that the proceedings at issue in the matter before it are civil, not criminal, and stated its assumption that the purpose and effect of those proceedings are nonpunitive. Ruling that no sufficiently strong special justification for indefinite civil detention exists in either Zadyvydas's or Ma's case, the Court rejected the government's two justifications for continued detention: ensuring individuals' appearance at future immigration proceedings and "preventing danger to the community."

According to the Court, the first justification, which seeks to prevent flight, is weak or nonexistent where removal is remote. As to the justification for preventive detention, the Court noted that it has upheld such detention only when limited to especially dangerous individuals, and even in these cases it has demanded that strong procedural safeguards be in place. In cases in which preventive detention is potentially indefinite, the Court has also required that the element of danger be "accompanied by some other special circumstance," like mental illness, that contributes to the danger. However, the Court ruled, despite the potentially permanent nature of the confinement under review, the statutory provision authorizing post-removal-period detention does not apply narrowly to dangerous individuals. Indeed, it applies broadly, encompassing even persons ordered removed for tourist visa violations. Once the flight risk justification is removed, the Court held, the only special circumstance that remains is the individual's removal status, "which bears no relation to a detainee's dangerousness."

The Court also found it troubling that the sole procedural protections available to detainees are afforded in administrative proceedings in which the detainee bears the burden of proving he or she is neither dangerous nor a flight risk. The Court noted that it has previously suggested that granting administrative bodies the nonreviewable authority to make decisions implicating fundamental rights may run afoul of the Constitution. "The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious," it stated.

Citing Shaughnessy v. U.S. ex rel Mezei, U.S. 206 (1953), the government also argued that, from a constitutional perspective, alien status itself can justify indefinite detention. The Mezei case involved a lawful permanent resident who left the country and was subsequently refused admission. Such individuals were placed in exclusion proceedings and were treated as though they had not entered the country. The court distinguished between persons who make lawful entry into the U.S. and those like Mezei who are considered not to have done so. The Court thereby restated the longstanding principle that persons who are in the country enjoy greater due process rights than those who stand outside its borders.

In arguing for its position, the government also cited Supreme Court cases holding that Congress has plenary power to create immigration law and that the judicial branch must defer in this area to the executive and legislative branches' decisions. The Court responded by stating that implementing such power is subject to limitations; Congress must choose constitutionally permissible means of doing so.

Finally, the Court stated that if Congress makes its intent clear in its statutes, courts must give effect to such intent. However, it could find no clear demonstration of congressional intent to grant the attorney general the power to hold indefinitely individuals ordered removed.

Returning to Zadvydas's and Ma's cases, the Court found neither circuits' ruling satisfactory. The Fifth Circuit had based its holding that Zadvydas's detention is lawful on his failure to show his removal would be impossible. This standard, the Court held, seems to require that individuals must show the absence of any likelihood of removal, no matter how improbable or unforeseeable. The Court ruled that the imposition of such a standard far exceeds its reading of the statute's limits. In Ma's case, the Court found that the Ninth Circuit may have reached its decision based solely on the lack of a U.S. repatriation treaty with Cambodia. The lower court should have given more weight to the future likelihood of such a treaty's ratification, the Court held. Accordingly, it ordered both decisions vacated and remanded the cases for further proceedings consistent with its opinion.

Zadvydas v. Davis, et al., 121 S. Ct. 2491 (June 28, 2001).