Immigration

• Author: International Law Group

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...