ZADVYDAS v. DAVIS: Indefinite Detention of Aliens Ordered Deported
Unconstitutional (June 28, 2001)
The 5-to-4 decision rejected the government's
view, as argued by both
the Clinton and Bush administrations, that immigration law authorized
and the Constitution permitted indefinite, even lifelong detention of
immigrants adjudged deportable but unable to be repatriated.
Justice Stephen G. Breyer's majority opinion said that because
interpreting the law in that way would present a "serious constitutional
threat" under the Fifth Amendment's guarantee of due process, the court
would construe the law to permit only "reasonable" detention. Justice
Breyer said that after six months of detention, if deportation did not
seem likely in the "reasonably foreseeable future," the government would
have to come up with special reasons for keeping someone in custody.
the Clinton and Bush administrations, that immigration law authorized
and the Constitution permitted indefinite, even lifelong detention of
immigrants adjudged deportable but unable to be repatriated.
Justice Stephen G. Breyer's majority opinion said that because
interpreting the law in that way would present a "serious constitutional
threat" under the Fifth Amendment's guarantee of due process, the court
would construe the law to permit only "reasonable" detention. Justice
Breyer said that after six months of detention, if deportation did not
seem likely in the "reasonably foreseeable future," the government would
have to come up with special reasons for keeping someone in custody.
U.S. Supreme Court Declares Indefinite Detention
of Aliens Ordered Deported Unconstitutional & Allows Criminal Aliens to
Apply for Waivers
ZADVYDAS v. DAVIS et al . Together with No. 00—38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States
Court of Appeals for the Ninth Circuit. (06/28/01)
HTML version: http://supct.law.cornell.edu/supct/html/99-7791.ZO.html
PDF version: http://callyourlawyers.com/pdfcaselaw/KIMHOMA.pdf
The central issue in both cases, which the Court consolidated for
review, is the government's power to detain a deportable alien. The
statute before the court requires a 90-day period of confinement for
immigrants subject to a "final removal order," after which the
government "may" continue the detention.
After a final removal order is entered, an alien ordered removed is held
in custody during a 90-day removal period. If the alien is not removed
in those 90 days, the post-removal-period detention statute authorizes
further detention or supervised release, subject to administrative
review.
The 5-to-4 decision rejected the government's view, as argued by both
the Clinton and Bush administrations, that immigration law authorized
and the Constitution permitted indefinite, even lifelong detention of
immigrants adjudged deportable but unable to be repatriated.
Justice Stephen G. Breyer's majority opinion said that because
interpreting the law in that way would present a "serious constitutional
threat" under the Fifth Amendment's guarantee of due process, the court
would construe the law to permit only "reasonable" detention. Justice
Breyer said that after six months of detention, if deportation did not
seem likely in the "reasonably foreseeable future," the government would
have to come up with special reasons for keeping someone in custody.
Held: 1. Section 2241 habeas proceedings are available as a forum for
statutory and constitutional challenges to post-removal-period
detention. Statutory changes in the immigration law left habeas
untouched as the basic method for obtaining review of continued custody
after a deportation order becomes final, and none of the statutory
provisions limiting judicial review of removal decisions applies here.
Pp. 6—8.
2. The post-removal-period detention statute, read in light of the
Constitution’s demands, implicitly limits an alien’s detention to a
period reasonably necessary to bring about that alien’s removal from the
United States, and does not permit indefinite detention. Pp. 8—19.
(a) A statute permitting indefinite detention would raise serious
constitutional questions. Freedom from imprisonment lies at the heart of
the liberty protected by the Due Process Clause. Government detention
violates the Clause unless it is ordered in a criminal proceeding with
adequate procedural safeguards or a special justification outweighs the
individual’s liberty interest. The instant proceedings are civil and
assumed to be non punitive, and the Government proffers no sufficiently
strong justification for indefinite civil detention under this statute.
The first justification–preventing flight–is weak or nonexistent where
removal seems a remote possibility. Preventive detention based on the
second justification–protecting the community–has been upheld only when
limited to specially dangerous individuals and subject to strong
procedural protections. When preventive detention is potentially
indefinite, this dangerousness rationale must also be accompanied by
some other special circumstance, such as mental illness, that helps to
create the danger. The civil confinement here is potentially permanent,
and once the flight risk justification evaporates, the only special
circumstance is the alien’s removable status, which bears no relation to
dangerousness. Moreover, the sole procedural protections here are found
in administrative proceedings, where the alien bears the burden of
proving he is not dangerous, without (according to the Government)
significant later judicial review. The Constitution may well preclude
granting an administrative body unreviewable authorityto make
determinations implicating fundamental rights. Pp. 8—12.
(b) Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which
an alien was indefinitely detained as he attempted to reenter the
country–does not support the Government’s argument that alien status
itself can justify indefinite detention. Once an alien enters the
country, the legal circumstance changes, for the Due Process Clause
applies to all persons within the United States, including aliens,
whether their presence is lawful, unlawful, temporary, or permanent. Nor
do cases holding that, because Congress has plenary power to create
immigration law, the Judicial Branch must defer to Executive and
Legislative Branch decision making in that area help the Government,
because that power is subject to constitutional limits. Finally, the
aliens’ liberty interest is not diminished by their lack of a legal
right to live at large, for the choice at issue here is between
imprisonment and supervision under release conditions that may not be
violated and their liberty interest is strong enough to raise a serious
constitutional problem with indefinite detention. Pp. 12—16.
(c) Despite the constitutional problem here, if this Court were to find
a clear congressional intent to grant the Attorney General the power to
indefinitely detain an alien ordered removed, the Court would be
required to give it effect. But this Court finds no clear indication of
such intent. The statute’s use of “may” is ambiguous and does not
necessarily suggest unlimited discretion. Similar related statutes
requiring detention of criminal aliens during removal proceedings and
the removal period do not show that Congress authorized indefinite
detention here. Finally, nothing in the statute’s legislative history
clearly demonstrates a congressional intent to authorize indefinite,
perhaps permanent, detention. Pp. 16—19.
3. The application of the “reasonable time” limitation is subject to
federal-court review. The basic federal habeas statute grants the
federal courts authority to determine whether post-removal-period
detention is pursuant to statutory authority. In answering that
question, the court must ask whether the detention exceeds a period
reasonably necessary to secure removal. It should measure reasonableness
primarily in terms of the statute’s purpose of assuring the alien’s
presence at the moment of removal. Thus, if removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and
no longer authorized. If it is foreseeable, the court should consider
the risk of the alien’s committing further crimes as a factor
potentially justifying continued confinement. Without abdicating their
responsibility to review the detention’s lawfulness, the courts can take
appropriate account of such matters as the Executive Branch’s greater
immigration-related expertise, the Immigration and Naturalization
Service’s administrative needs and concerns, and the Nation’s need to
speak with one voice on immigration. In order to limit the occasions
when courts will need to make the difficult judgments called for by the
recognition of this necessary Executive leeway, it is practically
necessary to recognize a presumptively reasonable period of detention.
It is unlikely that Congress believed that all reasonably foreseeable
removals could be accomplished in 90 days, but there is reason to
believe that it doubted the constitutionality of more than six months’
detention. Thus, for the sake of uniform administration in the federal
courts, six months is the appropriate period. After the 6-month period,
once an alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,
the Government must furnish evidence sufficient to rebut that showing.
Pp. 19—22.
Breyer, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed
a dissenting opinion, in which Thomas, J., joined. Kennedy, J., filed a
dissenting opinion, in which Rehnquist, C. J., joined, and in which
Scalia and Thomas, JJ., joined as to Part I.
------------------------------------------------------------------------
ZADVYDAS v. DAVIS et al . Together with No. 00—38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States
Court of Appeals for the Ninth Circuit. (06/28/01)
HTML version: http://supct.law.cornell.edu/supct/html/99-7791.ZO.html
PDF version: http://callyourlawyers.com/pdfcaselaw/KIMHOMA.pdf
The central issue in both cases, which the Court consolidated for
review, is the government's power to detain a deportable alien. The
statute before the court requires a 90-day period of confinement for
immigrants subject to a "final removal order," after which the
government "may" continue the detention.
After a final removal order is entered, an alien ordered removed is held
in custody during a 90-day removal period. If the alien is not removed
in those 90 days, the post-removal-period detention statute authorizes
further detention or supervised release, subject to administrative
review.
The 5-to-4 decision rejected the government's view, as argued by both
the Clinton and Bush administrations, that immigration law authorized
and the Constitution permitted indefinite, even lifelong detention of
immigrants adjudged deportable but unable to be repatriated.
Justice Stephen G. Breyer's majority opinion said that because
interpreting the law in that way would present a "serious constitutional
threat" under the Fifth Amendment's guarantee of due process, the court
would construe the law to permit only "reasonable" detention. Justice
Breyer said that after six months of detention, if deportation did not
seem likely in the "reasonably foreseeable future," the government would
have to come up with special reasons for keeping someone in custody.
Held: 1. Section 2241 habeas proceedings are available as a forum for
statutory and constitutional challenges to post-removal-period
detention. Statutory changes in the immigration law left habeas
untouched as the basic method for obtaining review of continued custody
after a deportation order becomes final, and none of the statutory
provisions limiting judicial review of removal decisions applies here.
Pp. 6—8.
2. The post-removal-period detention statute, read in light of the
Constitution’s demands, implicitly limits an alien’s detention to a
period reasonably necessary to bring about that alien’s removal from the
United States, and does not permit indefinite detention. Pp. 8—19.
(a) A statute permitting indefinite detention would raise serious
constitutional questions. Freedom from imprisonment lies at the heart of
the liberty protected by the Due Process Clause. Government detention
violates the Clause unless it is ordered in a criminal proceeding with
adequate procedural safeguards or a special justification outweighs the
individual’s liberty interest. The instant proceedings are civil and
assumed to be non punitive, and the Government proffers no sufficiently
strong justification for indefinite civil detention under this statute.
The first justification–preventing flight–is weak or nonexistent where
removal seems a remote possibility. Preventive detention based on the
second justification–protecting the community–has been upheld only when
limited to specially dangerous individuals and subject to strong
procedural protections. When preventive detention is potentially
indefinite, this dangerousness rationale must also be accompanied by
some other special circumstance, such as mental illness, that helps to
create the danger. The civil confinement here is potentially permanent,
and once the flight risk justification evaporates, the only special
circumstance is the alien’s removable status, which bears no relation to
dangerousness. Moreover, the sole procedural protections here are found
in administrative proceedings, where the alien bears the burden of
proving he is not dangerous, without (according to the Government)
significant later judicial review. The Constitution may well preclude
granting an administrative body unreviewable authorityto make
determinations implicating fundamental rights. Pp. 8—12.
(b) Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which
an alien was indefinitely detained as he attempted to reenter the
country–does not support the Government’s argument that alien status
itself can justify indefinite detention. Once an alien enters the
country, the legal circumstance changes, for the Due Process Clause
applies to all persons within the United States, including aliens,
whether their presence is lawful, unlawful, temporary, or permanent. Nor
do cases holding that, because Congress has plenary power to create
immigration law, the Judicial Branch must defer to Executive and
Legislative Branch decision making in that area help the Government,
because that power is subject to constitutional limits. Finally, the
aliens’ liberty interest is not diminished by their lack of a legal
right to live at large, for the choice at issue here is between
imprisonment and supervision under release conditions that may not be
violated and their liberty interest is strong enough to raise a serious
constitutional problem with indefinite detention. Pp. 12—16.
(c) Despite the constitutional problem here, if this Court were to find
a clear congressional intent to grant the Attorney General the power to
indefinitely detain an alien ordered removed, the Court would be
required to give it effect. But this Court finds no clear indication of
such intent. The statute’s use of “may” is ambiguous and does not
necessarily suggest unlimited discretion. Similar related statutes
requiring detention of criminal aliens during removal proceedings and
the removal period do not show that Congress authorized indefinite
detention here. Finally, nothing in the statute’s legislative history
clearly demonstrates a congressional intent to authorize indefinite,
perhaps permanent, detention. Pp. 16—19.
3. The application of the “reasonable time” limitation is subject to
federal-court review. The basic federal habeas statute grants the
federal courts authority to determine whether post-removal-period
detention is pursuant to statutory authority. In answering that
question, the court must ask whether the detention exceeds a period
reasonably necessary to secure removal. It should measure reasonableness
primarily in terms of the statute’s purpose of assuring the alien’s
presence at the moment of removal. Thus, if removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and
no longer authorized. If it is foreseeable, the court should consider
the risk of the alien’s committing further crimes as a factor
potentially justifying continued confinement. Without abdicating their
responsibility to review the detention’s lawfulness, the courts can take
appropriate account of such matters as the Executive Branch’s greater
immigration-related expertise, the Immigration and Naturalization
Service’s administrative needs and concerns, and the Nation’s need to
speak with one voice on immigration. In order to limit the occasions
when courts will need to make the difficult judgments called for by the
recognition of this necessary Executive leeway, it is practically
necessary to recognize a presumptively reasonable period of detention.
It is unlikely that Congress believed that all reasonably foreseeable
removals could be accomplished in 90 days, but there is reason to
believe that it doubted the constitutionality of more than six months’
detention. Thus, for the sake of uniform administration in the federal
courts, six months is the appropriate period. After the 6-month period,
once an alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,
the Government must furnish evidence sufficient to rebut that showing.
Pp. 19—22.
Breyer, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed
a dissenting opinion, in which Thomas, J., joined. Kennedy, J., filed a
dissenting opinion, in which Rehnquist, C. J., joined, and in which
Scalia and Thomas, JJ., joined as to Part I.
------------------------------------------------------------------------
Posted: Tue - December 10, 2002 at 10:35 AM
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