The future of aliens ordered removed from the United States in the wake of Zadvydas v. Davis.

• Author: Reckers, Rob

1. INTRODUCTION

   With public attention greatly heightened in the wake of the September 11, 2001 terrorist attacks, as never before, the nation's eyes are focused upon U.S. immigration laws and policies. (1) However, as lawmakers and federal agencies reevaluate and revise the approaches to the complex questions surrounding immigration, they must also contend with the Supreme Court decision in Zadvydas v. Davis. (2)

   Zadvydas deals with the issues concerning the governmental power to detain deportable aliens that no other country will accept. (3) Justice Stephen Breyer, writing for a 5-4 majority, ruled that the government did not have the power to indefinitely hold the aliens because of implicit reasonableness limitations in the controlling statutes. (4) Furthermore, Justice Breyer imposed a presumption that six months of detention is the limit for a reasonable detainment. (5) After six months, if the alien shows that there is "no significant likelihood of removal in the reasonably foreseeable future," the government must offer evidence to rebut that showing to prevent the alien from being released. (6)

   This Note contends that the Court's opinion is flawed in three critical respects. The majority's construction of the statute as containing implicit reasonableness limitations is contrary to the statute's plain language, contradicts congressional intent, and results in odd and unintended consequences. (7) The second problem stems from the Court's affirmation of the constitutional significance of territorial distinctions. (8) This differentiation perpetuates an unstable, tiered system of alien rights that grants minimal and unclear rights to aliens stopped at the border, while giving broad constitutional protection to those able to gain entry, legally or illegally. (9) The third problem, the creation of a presumptively reasonable detention period, not only rests upon weak precedential footing, (10) but also, by limiting the Attorney General's ability to detain dangerous aliens, greatly diminishes the capacity of the Immigration and Naturalization Service (INS) to fulfill the statute's goal of community protection. (11)

   This Note also discusses judicial, administrative, and legislative reactions to Zadvydas. Aliens have petitioned the courts to extend reasonableness limitations to the detention of inadmissible aliens (12) and to pre-removal detention. (13) Various circuit courts have afforded greater protection to aliens during removal proceedings. (14) For example, relying upon Zadvydas's affirmation of substantial due process rights to removal of aliens, some courts have found that mandatory pre-removal detention is unconstitutional and have attacked the controlling statute. (15) With the invalidation of this federal immigration law in various circuits, (16) the scope of the Zadvydas decision will continue to be contested across the nation, and the Supreme Court may once again need to speak to these issues.

   The INS has enacted new rules that amend the custody review process for the detention of aliens ordered removed. (17) Generally, these rules call for the release of aliens as mandated by Zadvydas. (18) However, the INS has mitigated the negative effects of the Court's decision by continuing the detention of certain dangerous aliens, (19) and by requiring parole restrictions for released aliens. (20)

   Congress, in enacting the USA Patriot Act, (21) included a provision that mirrors the Court's holding concerning the presumably reasonable period. (22) Congress, however, granted the Attorney General the discretion to consider the danger an alien poses to the community when contemplating the alien's release. (23) While the USA Patriot Act is limited to aliens posing a terrorist or national security threat, (24) these provisions can be viewed as an acceptance of Zadvydas's reasonableness limitations and as a rejection of the Court's position on extended detention for dangerous aliens. (25)

   This Note begins with a case recitation, followed by an analysis of the Zadvydas opinion. The analysis focuses on the Court's use of the avoidance doctrine in the interpretation of the statute, the due process rights of aliens after Zadvydas, and the creation of the presumably reasonable detention period with the Attorney General's limited scope of discretion. The fourth section of this Note explores the reactions of the various branches of government to this case by reviewing judicial attempts to expand Zadvydas and analyzing changes in administrative regulations and statutory law.

2. CASE RECITATION

   1. Facts and Procedural History

      The Zadvydas decision consolidated two appeals from similar cases, Zadvydas v. Underdown (26) and Ma v. Reno. (27) The first case involved Kestutis Zadvydas, a resident alien born in Germany of Lithuanian parents. (28) He immigrated to the United States when he was eight years old and had resided in the United States ever since. (29) Zadvydas had a long criminal record that included: drug crimes, attempted robbery, burglary, and theft; and a history of flight from criminal and deportation proceedings. (30) In 1994 after serving two years of a sixteen-year drug sentence, he was released to the INS and ordered deported. (31) Repeated efforts to identify a country willing to accept Zadvydas failed, and the INS continued to detain him throughout the mid-1990s. (32)

      In 1995, Zadvydas filed a writ of habeas corpus challenging his detention. (33) Two years later in 1997, the United States District Court for the Eastern District of Louisiana ordered him released under supervision. (34) The Fifth Circuit reversed this result in 1999, concluding that the confinement was constitutional because deportation was not impossible, good faith efforts to deport him continued, and detention was subject to administrative review. (35)

      The second case considered was Ma. (36) Kim Ho Ma was born in Cambodia and immigrated into the United States at the age of seven. (37) In 1995, Ma was convicted of manslaughter. (38) After serving two years in prison, he was released to the INS and ordered removed. (39) The INS detained Ma past the removal period because they were "`unable to conclude that [he] would remain nonviolent and not violate the conditions of release.'" (40)

      In 1999, Ma filed a petition for a writ of habeas corpus. (41) A five-judge panel considering 100 such cases in the United States District Court for the Western District of Washington held that the Constitution forbade extended detention, unless there is "a realistic chance that [the] alien will be deported." (42) After an evidentiary hearing, a judge found that Ma had no realistic chance of being deported, and ordered his release. (43) The Ninth Circuit affirmed, concluding that the statute did not authorize detention for longer than a reasonable period. (44)

      Because of contradictory results in the Fifth and Ninth Circuits, the Supreme Court granted writs in both cases and decided the cases together. (45)

   2. Majority Opinion

      The principal statute at issue in Zadvydas is 8 U.S.C. [section] 1231(a)(6), which provides that an alien ordered removed--who the Attorney General has determined to be a risk to the community or unlikely to comply with the removal order--may be detained beyond the removal period. (46)

      The majority opinion began its analysis by reciting the principle of statutory interpretation that, when a statute raises a serious doubt as to its constitutionality, the Court will "ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided." (47)

      Justice Breyer concluded that the statute raises a serious constitutional doubt because the Fifth Amendment's Due Process Clause protects against such indefinite detention. (48) To survive a constitutional attack, civil, non-punitive detention must be supported by sufficiently strong special justifications. (49) The justification advanced by the Government for such detention was the risk of flight and danger to the community. (50) Justice Breyer disregarded the risk of flight because, absent foreseeable deportation, there is nothing from which to flee. (51) As to the danger to the community justification, special circumstances must exist before one can be held for preventive reasons, and the detention must be subject to strong procedural protections. (52) However, the statute does not require such special circumstances and applies to a large group of aliens. (53) Furthermore, Justice Breyer reasoned, there is a lack of procedural protection under [section] 1231 because an alien must prove that he is not dangerous, an administrative body makes the detention decision, and the detainee is not afforded significant judicial review. (54)

      With the potential for constitutional problems established, Justice Breyer turned his attention to finding an interpretation of the statute that would avoid constitutional doubt. (55) He concluded that the statute could be read with implicit reasonableness limitations because there was no clear congressional intent to authorize the indefinite, perhaps permanent, detention. (56) Justice Breyer determined that, to avoid constitutional problems, the statute should be read to mean that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." (57)

      After establishing reasonableness limitations, Justice Breyer delineated the mechanics of these requirements. (58) Justice Breyer concluded that the basic habeas statutes allow federal courts to answer the reasonableness question. (59) In making the reasonableness determination in a habeas review, a court should consider [section] 1231's primary purpose, assuring the alien's presence at the moment of removal. (60) Once removal becomes unforeseeable, the detention is unreasonable, and the alien should be released. (61)

      To aid in this determination, Justice Breyer established a presumptively reasonable detention period of six...