533 u.s. 678 zadvydas v. davis 2491 · argued feb. 21, 2001. decided june 28, 2001. resident aliens...

2491ZADVYDAS v. DAVISCite as 121 S.Ct. 2491 (2001)

533 U.S. 678

533 U.S. 678, 150 L.Ed.2d 653

S 678Kestutis ZADVYDAS, Petitioner,

v.

Christine G. DAVIS and Immigrationand Naturalization Service.

John D. Ashcroft, Attorney General,et al., Petitioners,

v.

Kim Ho Ma.Nos. 99–7791 and 00–38.

Argued Feb. 21, 2001.

Decided June 28, 2001.

Resident aliens who had been orderedremoved and who were held in custody byImmigration and Naturalization Service(INS) beyond 90–day removal period, dueto government’s inability to remove them,brought separate habeas petitions seekingrelease. The United States District Courtfor the Eastern District of Louisiana, Fal-lon, J., 986 F.Supp. 1011, granted one peti-tion. The United States Court of Appealsfor the Fifth Circuit reversed, 185 F.3d279. The United States District Court forthe Western District of Washington, Las-nik, J., 56 F.Supp.2d 1165, granted otherpetition. The United States Court of Ap-peals for the Ninth Circuit affirmed, 208F.3d 815. Certiorari was granted, andcases were consolidated. The SupremeCourt, Justice Breyer, held that: (1) Immi-gration and Nationality Act’s (INA) post-removal-period detention provision con-tains implicit reasonableness limitation;(2) federal habeas statute grants federalcourts authority to decide whether givenpost-removal-period detention is statutori-ly authorized; and (3) presumptive limit toreasonable duration of post-removal-perioddetention is six months.

Vacated and remanded.

Justice Scalia filed dissenting opinionjoined by Justice Thomas.

Justice Kennedy filed dissenting opin-ion joined by the Chief Justice and joinedby Justices Scalia and Thomas in part.

1. Habeas Corpus O521

Federal habeas corpus proceedingsare available as forum for statutory andconstitutional challenges to post-removal-period detention of alien. Immigrationand Nationality Act, § 241(a)(6), as amend-ed, 8 U.S.C.A. § 1231(a)(6); 28 U.S.C.A.§ 2241(c)(3).

2. Constitutional Law O48(3)

When act of Congress raises seriousdoubt as to its constitutionality, SupremeCourt first ascertains whether constructionof statute is fairly possible by which ques-tion may be avoided.

3. Aliens O53.9

Immigration and Nationality Act’s(INA) post-removal-period detention provi-sion does not permit indefinite detention ofalien beyond 90–day removal period inevent government is unable to remove, butrather contains implicit limitation of deten-tion period to that reasonably necessary tobring about removal; provision that Attor-ney General ‘‘may’’ continue to detain alienwho is ‘‘risk to the community or unlikelyto comply with the order of removal’’ is notgrant of unlimited discretion, and once re-moval is no longer reasonably foreseeable,continued detention is no longer autho-rized under Act. U.S.C.A. Const.Amend.5; Immigration and Nationality, as amend-ed, 8 U.S.C.A. § 1231(a)(6).

4. Constitutional Law O255(2)

Government detention violates DueProcess Clause unless detention is orderedin criminal proceeding with adequate pro-cedural protections, or there is special jus-tification, such as harm-threatening mental

2492 121 SUPREME COURT REPORTER 533 U.S. 678

illness, which outweighs individual’s consti-tutionally protected interest in avoidingphysical restraint. U.S.C.A. Const.Amend. 5.

5. Constitutional Law O274.3Due Process Clause protects alien

subject to final order of deportation.U.S.C.A. Const.Amend. 5.

6. Habeas Corpus O521 Statutes O219(6.1)

Primary federal habeas corpus statutegrants federal courts authority to decidewhether given post-removal-period deten-tion of alien is statutorily authorized;courts are not required to defer to execu-tive branch’s view as to whether implicitreasonableness limitation of post-removal-period statute is satisfied, although execu-tive view must be taken into account. Im-migration and Nationality Act, § 241(a)(6),as amended, 8 U.S.C.A. § 1231(a)(6); 28U.S.C.A. § 2241(c)(3).

7. Aliens O54.1(2) Habeas Corpus O711

Presumptive limit to reasonable dura-tion of detention under post-removal-peri-od provision of Immigration and Nationali-ty Act (INA) is six months; after sixmonths, once alien provides good reason tobelieve that there is no significant likeli-hood of removal in reasonably foreseeablefuture, government must respond with evi-dence sufficient to rebut that showing inorder to warrant further detention. Immi-gration and Nationality Act, § 241(a)(6), asamended, 8 U.S.C.A. § 1231(a)(6).

Syllabus *

After a final removal order is entered,an alien ordered removed is held in custo-dy during a 90–day removal period. If thealien is not removed in those 90 days, thepost-removal-period detention statute au-thorizes further detention or supervisedrelease, subject to administrative review.

Kestutis Zadvydas, petitioner in No. 99–7791—a resident alien born, apparently ofLithuanian parents, in a German displacedpersons camp—was ordered deportedbased on his criminal record. Germanyand Lithuania refused to accept him be-cause he was not a citizen of their coun-tries; efforts to send him to his wife’snative country also failed. When he re-mained in custody after the removal periodexpired, he filed a habeas action under 28U.S.C. § 2241. The District Court grant-ed the writ, reasoning that, because theGovernment would never remove him, hisconfinement would be permanent, in viola-tion of the Constitution. In reversing, theFifth Circuit concluded that Zadvydas’ de-tention did not violate the Constitutionbecause eventual deportation was not im-possible, good-faith efforts to remove himcontinued, and his detention was subject toadministrative review. Kim Ho Ma, re-spondent in No. 00–38, is a resident alienborn in Cambodia who was ordered re-moved based on his aggravated felony con-viction. When he remained in custody af-ter the removal period expired, he filed a§ 2241 habeas petition. In ordering hisrelease, the District Court held that theConstitution forbids post-removal-perioddetention unless there is a realistic chancethat an alien will be removed, and that nosuch chance existed here because Cambo-dia has no repatriation treaty with theUnited States. The Ninth Circuit af-firmed, concluding that detention was notauthorized for more than a reasonabletime beyond the 90–day period, and that,given the lack of a repatriation agreement,that time had expired.

Held:1. Section 2241 habeas proceedings

are available as a forum for statutory andconstitutional challenges to post-removal-period detention. Statutory changes inthe immigration law left habeas untouchedas the S 679basic method for obtaining reviewof continued custody after a deportation

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


533 U.S. 680

order becomes final, and none of the statu-tory provisions limiting judicial review ofremoval decisions applies here. Pp. 2497–2498.

2. The post-removal-period detentionstatute, read in light of the Constitution’sdemands, implicitly limits an alien’s deten-tion to a period reasonably necessary tobring about that alien’s removal from theUnited States, and does not permit indefi-nite detention. Pp. 2498–2503.

(a) A statute permitting indefinite de-tention would raise serious constitutionalquestions. Freedom from imprisonmentlies at the heart of the liberty protected bythe Due Process Clause. Government de-tention violates the Clause unless it is or-dered in a criminal proceeding with ade-quate procedural safeguards or a specialjustification outweighs the individual’s lib-erty interest. The instant proceedings arecivil and assumed to be nonpunitive, andthe Government proffers no sufficientlystrong justification for indefinite civil de-tention under this statute. The first justi-fication—preventing flight—is weak ornonexistent where removal seems a remotepossibility. Preventive detention based onthe second justification—protecting thecommunity—has been upheld only whenlimited to specially dangerous individualsand subject to strong procedural protec-tions. When preventive detention is po-tentially indefinite, this dangerousness ra-tionale must also be accompanied by someother special circumstance, such as mentalillness, that helps to create the danger.The civil confinement here is potentiallypermanent, and once the flight risk justifi-cation evaporates, the only special circum-stance is the alien’s removable status,which bears no relation to dangerousness.Moreover, the sole procedural protectionshere are found in administrative proceed-ings, where the alien bears the burden ofproving he is not dangerous, without (ac-cording to the Government) significant la-ter judicial review. The Constitution maywell preclude granting an administrativebody unreviewable authority to make de-

terminations implicating fundamentalrights. Pp. 2498–2500.

(b) Shaughnessy v. United States exrel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97L.Ed. 956—in which an alien was indefi-nitely detained as he attempted to reenterthe country—does not support the Govern-ment’s argument that alien status itselfcan justify indefinite detention. Once analien enters the country, the legal circum-stance changes, for the Due ProcessClause applies to all persons within theUnited States, including aliens, whethertheir presence is lawful, unlawful, tempo-rary, or permanent. Nor do cases holdingthat, because Congress has plenary powerto create immigration law, the JudicialBranch must defer to Executive and Leg-islative Branch decisionmaking in that areahelp the Government, because that poweris subject to constitutional limits. Finally,the aliens’ liberty interest is not diminish-ed by their lack of a legal right to live atlarge, for the choice at issue here is be-tween imprisonment and supervision underS 680release conditions that may not be vio-lated and their liberty interest is strongenough to raise a serious constitutionalproblem with indefinite detention. Pp.2500–2502.

(c) Despite the constitutional problemhere, if this Court were to find a clearcongressional intent to grant the AttorneyGeneral the power to indefinitely detain analien ordered removed, the Court would berequired to give it effect. But this Courtfinds no clear indication of such intent.The statute’s use of ‘‘may’’ is ambiguousand does not necessarily suggest unlimiteddiscretion. Similar related statutes re-quiring detention of criminal aliens duringremoval proceedings and the removal peri-od do not show that Congress authorizedindefinite detention here. Finally, nothingin the statute’s legislative history clearlydemonstrates a congressional intent to au-thorize indefinite, perhaps permanent, de-tention. Pp. 2502–2503.

3. The application of the ‘‘reasonabletime’’ limitation is subject to federal-court


review. The basic federal habeas statutegrants the federal courts authority to de-termine whether post-removal-period de-tention is pursuant to statutory authority.In answering that question, the court mustask whether the detention exceeds a peri-od reasonably necessary to secure remov-al. It should measure reasonableness pri-marily in terms of the statute’s purpose ofassuring the alien’s presence at the mo-ment of removal. Thus, if removal is notreasonably foreseeable, the court shouldhold continued detention unreasonable andno longer authorized. If it is foreseeable,the court should consider the risk of thealien’s committing further crimes as a fac-tor potentially justifying continued confine-ment. Without abdicating their responsi-bility to review the detention’s lawfulness,the courts can take appropriate account ofsuch matters as the Executive Branch’sgreater immigration-related expertise, theImmigration and Naturalization Service’sadministrative needs and concerns, and theNation’s need to speak with one voice onimmigration. In order to limit the occa-sions when courts will need to make thedifficult judgments called for by the recog-nition of this necessary Executive leeway,it is practically necessary to recognize apresumptively reasonable period of deten-tion. It is unlikely that Congress believedthat all reasonably foreseeable removalscould be accomplished in 90 days, butthere is reason to believe that it doubtedthe constitutionality of more than sixmonths’ detention. Thus, for the sake ofuniform administration in the federalcourts, six months is the appropriate peri-od. After the 6–month period, once analien provides good reason to believe thatthere is no significant likelihood of removalin the reasonably foreseeable future, theGovernment must furnish evidence suffi-cient to rebut that showing. Pp. 2503–2505.

S 6814. The standard that the FifthCircuit applied in holding Zadvydas’ con-tinued detention lawful seems to requirean alien seeking release to show the ab-

sence of any prospect of removal—no mat-ter how unlikely or unforeseeable—andthus demands more than the statute canbear. The Ninth Circuit’s conclusion thatMa should be released may have restedsolely upon the absence of a repatriationagreement without giving due weight tothe likelihood of successful future negotia-tions. P. 2505.

185 F.3d 279 and 208 F.3d 815, vacat-ed and remanded.

BREYER, J., delivered the opinion ofthe Court, in which STEVENS,O’CONNOR, SOUTER, and GINSBURG,JJ., joined. SCALIA, J., filed a dissentingopinion, in which THOMAS, J., joined,post, p. 2505. KENNEDY, J., filed adissenting opinion, in whichREHNQUIST, C.J., joined, and in whichSCALIA and THOMAS, JJ., joined as toPart I, post, p. 2507.

Jay W. Stansell, Seattle, WA, for re-spondent in No. 00–38. With him on thebrief were Thomas W. Hillier II and Jenni-fer E. Wellman.

Robert F. Barnard, New Orleans, LA,for petitioner in No. 99–7791.

Edwin S. Kneedler, Washington, DC, forrespondents in No. 99–7791 and for peti-tioners in No. 00–38.

For U.S. Supreme Court briefs, see:2000 WL 1784982 (Pet.Brief)2000 WL 1891006 (Resp.Brief)2001 WL 28667 (Resp.Brief)2001 WL 94628 (Reply.Brief)2001 WL 114312 (Reply.Brief)

S 682Justice BREYER delivered theopinion of the Court.

When an alien has been found to beunlawfully present in the United Statesand a final order of removal has beenentered, the Government ordinarily se-cures the alien’s removal during a subse-quent 90–day statutory ‘‘removal period,’’during which time the alien normally isheld in custody.


533 U.S. 684

A special statute authorizes further de-tention if the Government fails to removethe alien during those 90 days. It says:

‘‘An alien ordered removed [1] who isinadmissible TTT [2] [or] removable [as aresult of violations of status require-ments or entry conditions, violations ofcriminal law, or reasons of security orforeign policy] or [3] who has been de-termined by the Attorney General to bea risk to the community or unlikely tocomply with the order of removal, maybe detained beyond the removal periodand, if released, shall be subject to [cer-tain] terms of supervision TTTT’’ 8U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

In these cases, we must decide whetherthis post-removal-period statute authorizesthe Attorney General to detain a remova-ble alien indefinitely beyond the removalperiod or only for a period reasonablynecessary to secure the alien’s removal.We deal here with aliens who were admit-ted to the United States but subsequentlyordered removed. Aliens who have notyet gained initial admission to this countrywould present a very different question.See infra, at 2500–2501. Based on ourconclusion that indefinite detention ofaliens in the former category would raiseserious constitutional concerns, we con-strue the statute to contain an implicit‘‘reasonable time’’ limitation, the applica-tion of which is subject to federal-courtreview.

S 683I

AThe post-removal-period detention stat-

ute is one of a related set of statutes andregulations that govern detention duringand after removal proceedings. While re-moval proceedings are in progress, mostaliens may be released on bond or paroled.66 Stat. 204, as added and amended, 110Stat. 3009–585, 8 U.S.C. §§ 1226(a)(2), (c)(1994 ed., Supp. V). After entry of a finalremoval order and during the 90–day re-moval period, however, aliens must be held

in custody. § 1231(a)(2). Subsequently, asthe post-removal-period statute provides,the Government ‘‘may’’ continue to detainan alien who still remains here or releasethat alien under supervision. § 1231(a)(6).

Related Immigration and NaturalizationService (INS) regulations add that theINS District Director will initially reviewthe alien’s records to decide whether fur-ther detention or release under supervi-sion is warranted after the 90–day removalperiod expires. 8 C.F.R. § 241.4(c)(1), (h),(k)(1)(i) (2001). If the decision is to de-tain, then an INS panel will review thematter further, at the expiration of a 3–month period or soon thereafter.§ 241.4(k)(2)(ii). And the panel will de-cide, on the basis of records and a possiblepersonal interview, between still furtherdetention or release under supervision.§ 241.4(i). In making this decision, thepanel will consider, for example, the alien’sdisciplinary record, criminal record, men-tal health reports, evidence of rehabilita-tion, history of flight, prior immigrationhistory, and favorable factors such as fami-ly ties. § 241.4(f). To authorize release,the panel must find that the alien is notlikely to be violent, to pose a threat to thecommunity, to flee if released, or to violatethe conditions of release. § 241.4(e). Andthe alien must demonstrate ‘‘to the satis-faction of the Attorney General’’ that hewill pose no danger or risk of flight.S 684§ 241.4(d)(1). If the panel decidesagainst release, it must review the matteragain within a year, and can review itearlier if conditions change.§§ 241.4(k)(2)(iii), (v).

B

1

We consider two separate instances ofdetention. The first concerns KestutisZadvydas, a resident alien who was born,apparently of Lithuanian parents, in a dis-placed persons camp in Germany in 1948.When he was eight years old, Zadvydasimmigrated to the United States with his


parents and other family members, and hehas lived here ever since.

Zadvydas has a long criminal record,involving drug crimes, attempted robbery,attempted burglary, and theft. He has ahistory of flight, from both criminal anddeportation proceedings. Most recently,he was convicted of possessing, with intentto distribute, cocaine; sentenced to 16years’ imprisonment; released on paroleafter two years; taken into INS custody;and, in 1994, ordered deported to Germa-ny. See 8 U.S.C. § 1251(a)(2) (1988 ed.,Supp. V) (delineating crimes that makealien deportable).

In 1994, Germany told the INS that itwould not accept Zadvydas because hewas not a German citizen. Shortly there-after, Lithuania refused to accept Zadvy-das because he was neither a Lithuaniancitizen nor a permanent resident. In 1996,the INS asked the Dominican Republic(Zadvydas’ wife’s country) to accept him,but this effort proved unsuccessful. In1998, Lithuania rejected, as inadequatelydocumented, Zadvydas’ effort to obtain Li-thuanian citizenship based on his parents’citizenship; Zadvydas’ reapplication is ap-parently still pending.

The INS kept Zadvydas in custody afterexpiration of the removal period. In Sep-tember 1995, Zadvydas filed a petition fora writ of habeas corpus under 28 U.S.C.§ 2241 chalSlenging685 his continued deten-tion. In October 1997, a Federal DistrictCourt granted that writ and ordered himreleased under supervision. Zadvydas v.Caplinger, 986 F.Supp. 1011, 1027–1028(E.D.La.). In its view, the Governmentwould never succeed in its efforts to re-move Zadvydas from the United States,leading to his permanent confinement, con-trary to the Constitution. Id., at 1027.

The Fifth Circuit reversed this decision.Zadvydas v. Underdown, 185 F.3d 279(1999). It concluded that Zadvydas’ deten-tion did not violate the Constitution be-cause eventual deportation was not ‘‘im-possible,’’ good-faith efforts to remove him

from the United States continued, and hisdetention was subject to periodic adminis-trative review. Id., at 294, 297. The FifthCircuit stayed its mandate pending poten-tial review in this Court.

2

The second case is that of Kim Ho Ma.Ma was born in Cambodia in 1977. Whenhe was two, his family fled, taking him torefugee camps in Thailand and the Philip-pines and eventually to the United States,where he has lived as a resident alien sincethe age of seven. In 1995, at age 17, Mawas involved in a gang-related shooting,convicted of manslaughter, and sentencedto 38 months’ imprisonment. He servedtwo years, after which he was released intoINS custody.

In light of his conviction of an ‘‘aggra-vated felony,’’ Ma was ordered removed.See 8 U.S.C. §§ 1101(a)(43)(F) (definingcertain violent crimes as aggravated felo-nies), 1227(a)(2)(A)(iii) (1994 ed., Supp. IV)(aliens convicted of aggravated felonies aredeportable). The 90–day removal periodexpired in early 1999, but the INS contin-ued to keep Ma in custody, because, inlight of his former gang membership, thenature of his crime, and his planned partic-ipation in a prison hunger strike, it was‘‘unable to conclude that S 686Mr. Ma wouldremain nonviolent and not violate the con-ditions of release.’’ App. to Pet. for Cert.in No. 00–38, p. 87a.

In 1999, Ma filed a petition for a writ ofhabeas corpus under 28 U.S.C. § 2241. Apanel of five judges in the Federal DistrictCourt for the Western District of Wash-ington, considering Ma’s and about 100similar cases together, issued a joint orderholding that the Constitution forbids post-removal-period detention unless there is ‘‘arealistic chance that [the] alien will bedeported’’ (thereby permitting classifica-tion of the detention as ‘‘in aid of deporta-tion’’). Binh Phan v. Reno, 56 F.Supp.2d1149, 1156 (1999). The District Court thenheld an evidentiary hearing, decided thatthere was no ‘‘realistic chance’’ that Cam-


533 U.S. 688

bodia (which has no repatriation treatywith the United States) would accept Ma,and ordered Ma released. App. to Pet. forCert. in No. 00–38, at 60a–61a.

The Ninth Circuit affirmed Ma’s release.Kim Ho Ma v. Reno, 208 F.3d 815 (2000).It concluded, based in part on constitution-al concerns, that the statute did not autho-rize detention for more than a ‘‘reasonabletime’’ beyond the 90–day period authorizedfor removal. Id., at 818. And, given thelack of a repatriation agreement withCambodia, that time had expired upon pas-sage of the 90 days. Id., at 830–831.

3

Zadvydas asked us to review the deci-sion of the Fifth Circuit authorizing hiscontinued detention. The Governmentasked us to review the decision of theNinth Circuit forbidding Ma’s continueddetention. We granted writs in bothcases, agreeing to consider both statutoryand related constitutional questions. Seealso Duy Dac Ho v. Greene, 204 F.3d 1045,1060 (C.A.10 2000) (upholding AttorneyGeneral’s statutory and constitutional au-thority to detain alien indefinitely). Weconsolidated the two cases for argument;and we now decide them together.

S 687II[1] We note at the outset that the pri-

mary federal habeas corpus statute, 28U.S.C. § 2241, confers jurisdiction uponthe federal courts to hear these cases.See § 2241(c)(3) (authorizing any person toclaim in federal court that he or she isbeing held ‘‘in custody in violation of theConstitution or laws TTT of the UnitedStates’’). Before 1952, the federal courtsconsidered challenges to the lawfulness ofimmigration-related detention, includingchallenges to the validity of a deportationorder, in habeas proceedings. See Heikki-la v. Barber, 345 U.S. 229, 230, 235–236, 73S.Ct. 603, 97 L.Ed. 972 (1953). Beginningin 1952, an alternative method for reviewof deportation orders, namely, actionsbrought in federal district court under the

Administrative Procedure Act (APA), be-came available. See Shaughnessy v. Pe-dreiro, 349 U.S. 48, 51–52, 75 S.Ct. 591, 99L.Ed. 868 (1955). And in 1961 Congressreplaced district court APA review withinitial deportation order review in courtsof appeals. See Act of Sept. 26, 1961, § 5,75 Stat. 651 (formerly codified at 8 U.S.C.§ 1105a(a)) (repealed 1996). The 1961 Actspecified that federal habeas courts werealso available to hear statutory and consti-tutional challenges to deportation (and ex-clusion) orders. See 8 U.S.C.§ 1105a(a)(10), (b) (repealed 1996). Thesestatutory changes left habeas untouched asthe basic method for obtaining review ofcontinued custody after a deportation or-der had become final. See Cheng FanKwok v. INS, 392 U.S. 206, 212, 215–216,88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968)(holding that § 1105a(a) applied only tochallenges to determinations made duringdeportation proceedings and motions to re-open those proceedings).

More recently, Congress has enactedseveral statutory provisions that limit thecircumstances in which judicial review ofdeportation decisions is available. Butnone applies here. One provision, 8 U.S.C.§ 1231(h) (1994 ed., Supp. V), simply for-bids courts to construe that section ‘‘tocreate any TTT procedural right or benefitthat is legally enforceSable688’’; it does notdeprive an alien of the right to rely on 28U.S.C. § 2241 to challenge detention thatis without statutory authority.

Another provision, 8 U.S.C.§ 1252(a)(2)(B)(ii) (1994 ed., Supp. V), saysthat ‘‘no court shall have jurisdiction toreview’’ decisions ‘‘specified TTT to be inthe discretion of the Attorney General.’’The aliens here, however, do not seek re-view of the Attorney General’s exercise ofdiscretion; rather, they challenge the ex-tent of the Attorney General’s authorityunder the post-removal-period detentionstatute. And the extent of that authorityis not a matter of discretion. See also,e.g., § 1226(e) (applicable to certain deten-tion-related decisions in period preceding


entry of final removal order);§ 1231(a)(4)(D) (applicable to assertion ofcauses or claims under § 1231(a)(4), whichis not at issue here); § 1252(a)(1), (a)(2)(C)(applicable to judicial review of ‘‘final or-der[s] of removal’’); § 1252(g) (applicableto decisions ‘‘to commence proceedings, ad-judicate cases, or execute removal or-ders’’).

We conclude that § 2241 habeas corpusproceedings remain available as a forumfor statutory and constitutional challengesto post-removal-period detention. And weturn to the merits of the aliens’ claims.

IIIThe post-removal-period detention stat-

ute applies to certain categories of alienswho have been ordered removed, namely,inadmissible aliens, criminal aliens, alienswho have violated their nonimmigrant sta-tus conditions, and aliens removable forcertain national security or foreign rela-tions reasons, as well as any alien ‘‘whohas been determined by the Attorney Gen-eral to be a risk to the community orunlikely to comply with the order of re-moval.’’ 8 U.S.C. § 1231(a)(6) (1994 ed.,Supp. V); see also 8 C.F.R. § 241.4(a)(2001). It says that an alien who falls intoone of these cateSgories689 ‘‘may be detainedbeyond the removal period and, if released,shall be subject to [certain] terms of su-pervision.’’ 8 U.S.C. § 1231(a)(6) (1994ed., Supp. V).

The Government argues that the statutemeans what it literally says. It sets no‘‘limit on the length of time beyond theremoval period that an alien who fallswithin one of the Section 1231(a)(6) catego-ries may be detained.’’ Brief for Petition-ers in No. 00–38, p. 22. Hence, ‘‘whetherto continue to detain such an alien and, ifso, in what circumstances and for howlong’’ is up to the Attorney General, not upto the courts. Ibid.

[2] ‘‘[I]t is a cardinal principle’’ of stat-utory interpretation, however, that whenan Act of Congress raises ‘‘a serious

doubt’’ as to its constitutionality, ‘‘thisCourt will first ascertain whether a con-struction of the statute is fairly possible bywhich the question may be avoided.’’ Cro-well v. Benson, 285 U.S. 22, 62, 52 S.Ct.285, 76 L.Ed. 598 (1932); see also UnitedStates v. X–Citement Video, Inc., 513 U.S.64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372(1994); United States v. Jin Fuey Moy,241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed.1061 (1916); cf. Almendarez–Torres v.United States, 523 U.S. 224, 238, 118 S.Ct.1219, 140 L.Ed.2d 350 (1998) (constructionof statute that avoids invalidation best re-flects congressional will). We have readsignificant limitations into other immigra-tion statutes in order to avoid their consti-tutional invalidation. See United States v.Witkovich, 353 U.S. 194, 195, 202, 77 S.Ct.779, 1 L.Ed.2d 765 (1957) (construing agrant of authority to the Attorney Generalto ask aliens whatever questions he‘‘deem[s] fit and proper’’ as limited toquestions ‘‘reasonably calculated to keepthe Attorney General advised regardingthe continued availability for departure ofaliens whose deportation is overdue’’).For similar reasons, we read an implicitlimitation into the statute before us. Inour view, the statute, read in light of theConstitution’s demands, limits an alien’spost-removal-period detention to a periodreasonably necessary to bring about thatalien’s removal from the United States. Itdoes not permit indefinite detention.

S 690A[3, 4] A statute permitting indefinite

detention of an alien would raise a seriousconstitutional problem. The Fifth Amend-ment’s Due Process Clause forbids theGovernment to ‘‘depriv[e]’’ any ‘‘personTTT of TTT liberty TTT without due processof law.’’ Freedom from imprisonment—from government custody, detention, orother forms of physical restraint—lies atthe heart of the liberty that Clause pro-tects. See Foucha v. Louisiana, 504 U.S.71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437(1992). And this Court has said that gov-


533 U.S. 692

ernment detention violates that Clause un-less the detention is ordered in a criminalproceeding with adequate procedural pro-tections, see United States v. Salerno, 481U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d697 (1987), or, in certain special and ‘‘nar-row’’ nonpunitive ‘‘circumstances,’’ Foucha,supra, at 80, 112 S.Ct. 1780, where a spe-cial justification, such as harm-threateningmental illness, outweighs the ‘‘individual’sconstitutionally protected interest in avoid-ing physical restraint.’’ Kansas v. Hen-dricks, 521 U.S. 346, 356, 117 S.Ct. 2072,138 L.Ed.2d 501 (1997).

The proceedings at issue here are civil,not criminal, and we assume that they arenonpunitive in purpose and effect. Thereis no sufficiently strong special justificationhere for indefinite civil detention—at leastas administered under this statute. Thestatute, says the Government, has two reg-ulatory goals: ‘‘ensuring the appearance ofaliens at future immigration proceedings’’and ‘‘[p]reventing danger to the communi-ty.’’ Brief for Respondents in No. 99–7791, p. 24. But by definition the firstjustification—preventing flight—is weak ornonexistent where removal seems a remotepossibility at best. As this Court said inJackson v. Indiana, 406 U.S. 715, 92 S.Ct.1845, 32 L.Ed.2d 435 (1972), where deten-tion’s goal is no longer practically attain-able, detention no longer ‘‘bear[s][a] rea-sonable relation to the purpose for whichthe individual [was] committed.’’ Id., at738, 92 S.Ct. 1845.

The second justification—protecting thecommunity—does not necessarily diminishin force over time. But we have S 691upheldpreventive detention based on dangerous-ness only when limited to specially danger-ous individuals and subject to strong pro-cedural protections. Compare Hendricks,supra, at 368, 117 S.Ct. 2072 (upholdingscheme that imposes detention upon ‘‘asmall segment of particularly dangerousindividuals’’ and provides ‘‘strict procedur-al safeguards’’), and Salerno, supra, at747, 750–752, 107 S.Ct. 2095 (in upholdingpretrial detention, stressing ‘‘stringent

time limitations,’’ the fact that detention isreserved for the ‘‘most serious of crimes,’’the requirement of proof of dangerousnessby clear and convincing evidence, and thepresence of judicial safeguards), with Fou-cha, supra, at 81–83, 112 S.Ct. 1780 (strik-ing down insanity-related detention systemthat placed burden on detainee to provenondangerousness). In cases in whichpreventive detention is of potentially indef-inite duration, we have also demanded thatthe dangerousness rationale be accompa-nied by some other special circumstance,such as mental illness, that helps to createthe danger. See Hendricks, supra, at 358,368, 117 S.Ct. 2072.

The civil confinement here at issue is notlimited, but potentially permanent. Cf.Salerno, supra, at 747, 107 S.Ct. 2095 (not-ing that ‘‘maximum length of pretrial de-tention is limited’’ by ‘‘stringent’’ require-ments); Carlson v. Landon, 342 U.S. 524,545–546, 72 S.Ct. 525, 96 L.Ed. 547 (1952)(upholding temporary detention of alienduring deportation proceeding while not-ing that ‘‘problem of TTT unusual delay’’was not present). The provision authoriz-ing detention does not apply narrowly to‘‘a small segment of particularly dangerousindividuals,’’ Hendricks, supra, at 368, 117S.Ct. 2072, say, suspected terrorists, butbroadly to aliens ordered removed formany and various reasons, including tour-ist visa violations. See 8 U.S.C.§ 1231(a)(6) (1994 ed., Supp. V) (referenc-ing § 1227(a)(1)(C)); cf. Hendricks, 521U.S., at 357–358, 117 S.Ct. 2072 (only indi-viduals with ‘‘past sexually violent behaviorand a present mental condition that cre-ates a likelihood of such conduct in thefuture’’ may be detained). And, once theflight risk justification evaporates, the onlyspecial cirScumstance692 present is thealien’s removable status itself, which bearsno relation to a detainee’s dangerousness.Cf. id., at 358, 117 S.Ct. 2072; Foucha,supra, at 82, 112 S.Ct. 1780.

Moreover, the sole procedural protec-tions available to the alien are found in


administrative proceedings, where thealien bears the burden of proving he isnot dangerous, without (in the Govern-ment’s view) significant later judicial re-view. Compare 8 C.F.R. § 241.4(d)(1)(2001) (imposing burden of proving non-dangerousness upon alien) with Foucha,supra, at 82, 112 S.Ct. 1780 (striking downinsanity-related detention for that veryreason). This Court has suggested, how-ever, that the Constitution may well pre-clude granting ‘‘an administrative bodythe unreviewable authority to make deter-minations implicating fundamental rights.’’Superintendent, Mass. Correctional Insti-tution at Walpole v. Hill, 472 U.S. 445,450, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)(O’CONNOR, J.); see also Crowell, 285U.S., at 87, 52 S.Ct. 285 (Brandeis, J.,dissenting) (‘‘[U]nder certain circum-stances, the constitutional requirement ofdue process is a requirement of judicialprocess’’). The Constitution demandsgreater procedural protection even forproperty. See South Carolina v. Regan,465 U.S. 367, 393, 104 S.Ct. 1107, 79L.Ed.2d 372 (1984) (O’CONNOR, J., con-curring in judgment); Phillips v. Com-missioner, 283 U.S. 589, 595–597, 51 S.Ct.608, 75 L.Ed. 1289 (1931) (Brandeis, J.).The serious constitutional problem arisingout of a statute that, in these circum-stances, permits an indefinite, perhapspermanent, deprivation of human libertywithout any such protection is obvious.

The Government argues that, from aconstitutional perspective, alien status it-self can justify indefinite detention, andpoints to Shaughnessy v. United States exrel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97L.Ed. 956 (1953), as support. That caseinvolved a once lawfully admitted alienwho left the United States, returned aftera trip abroad, was refused admission, andwas left on Ellis Island, indefinitely de-tained there because the Governmentcould not find another country to accepthim. The Court held that Mezei’s deten-tion did not violate the Constitution. Id.,at 215–216, 73 S.Ct. 625.

S 693Although Mezei, like the presentcases, involves indefinite detention, it dif-fers from the present cases in a criticalrespect. As the Court emphasized, thealien’s extended departure from the Unit-ed States required him to seek entry intothis country once again. His presence onEllis Island did not count as entry into theUnited States. Hence, he was ‘‘treated,’’for constitutional purposes, ‘‘as if stoppedat the border.’’ Id., at 213, 215, 73 S.Ct.625. And that made all the difference.

[5] The distinction between an alienwho has effected an entry into the UnitedStates and one who has never enteredruns throughout immigration law. SeeKaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct.257, 69 L.Ed. 585 (1925) (despite nineyears’ presence in the United States, an‘‘excluded’’ alien ‘‘was still in theory of lawat the boundary line and had gained nofoothold in the United States’’); Leng MayMa v. Barber, 357 U.S. 185, 188–190, 78S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (alien‘‘paroled’’ into the United States pendingadmissibility had not effected an ‘‘entry’’).It is well established that certain constitu-tional protections available to persons in-side the United States are unavailable toaliens outside of our geographic borders.See United States v. Verdugo–Urquidez,494 U.S. 259, 269, 110 S.Ct. 1056, 108L.Ed.2d 222 (1990) (Fifth Amendment’sprotections do not extend to aliens outsidethe territorial boundaries); Johnson v. Ei-sentrager, 339 U.S. 763, 784, 70 S.Ct. 936,94 L.Ed. 1255 (1950) (same). But once analien enters the country, the legal circum-stance changes, for the Due ProcessClause applies to all ‘‘persons’’ within theUnited States, including aliens, whethertheir presence here is lawful, unlawful,temporary, or permanent. See Plyler v.Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72L.Ed.2d 786 (1982); Mathews v. Diaz, 426U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478(1976); Kwong Hai Chew v. Colding, 344U.S. 590, 596–598, and n. 5, 73 S.Ct. 472,97 L.Ed. 576 (1953); Yick Wo v. Hopkins,118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed.


533 U.S. 695

220 (1886); cf. Mezei, supra, at 212, 73S.Ct. 625 (‘‘[A]liens who have once passedthrough our gates, even illegally, may beexpelled only after proceedings conformingto traditional standards of fairness encom-passed in due process of law’’). Indeed,this Court has held that the Due ProcessS 694Clause protects an alien subject to afinal order of deportation, see Wong Wingv. United States, 163 U.S. 228, 238, 16S.Ct. 977, 41 L.Ed. 140 (1896), though thenature of that protection may vary de-pending upon status and circumstance, seeLandon v. Plasencia, 459 U.S. 21, 32–34,103 S.Ct. 321, 74 L.Ed.2d 21 (1982); John-son, supra, at 770, 70 S.Ct. 936.

In Wong Wing, supra, the Court heldunconstitutional a statute that imposed ayear of hard labor upon aliens subject to afinal deportation order. That case con-cerned substantive protections for alienswho had been ordered removed, not proce-dural protections for aliens whose remova-bility was being determined. Cf. post, at2505 (SCALIA, J., dissenting). The Courtheld that punitive measures could not beimposed upon aliens ordered removed be-cause ‘‘all persons within the territory ofthe United States are entitled to the pro-tection’’ of the Constitution. 163 U.S., at238, 16 S.Ct. 977 (citing Yick Wo, supra, at369, 6 S.Ct. 1064 (holding that equal pro-tection guarantee applies to Chinesealiens)); see also Witkovich, 353 U.S., at199, 201, 77 S.Ct. 779 (construing statutewhich applied to aliens ordered deportedin order to avoid substantive constitutionalproblems). And contrary to Justice SCA-LIA’s characterization, see post, at 2505–2507, in Mezei itself, both this Court’srejection of Mezei’s challenge to the proce-dures by which he was deemed excludableand its rejection of his challenge to contin-ued detention rested upon a basic territori-al distinction. See Mezei, supra, at 215,73 S.Ct. 625 (holding that Mezei’s presenceon Ellis Island was not ‘‘considered a land-ing’’ and did ‘‘not affec[t]’’ his legal orconstitutional status (internal quotationmarks omitted)).

In light of this critical distinction be-tween Mezei and the present cases, Mezeidoes not offer the Government significantsupport, and we need not consider thealiens’ claim that subsequent developmentshave undermined Mezei’s legal authority.See Brief for Petitioner in No. 99–7791, p.23; Brief for Respondent in No. 00–38, pp.16–17; Brief for Lawyers’ Committee forHuman Rights as Amicus Curiae in No.00–38, pp. 15–20. Nor are we aware ofany other authority that would supportJustice KENNEDY’s limitation of S 695dueprocess protection for removable aliens tofreedom from detention that is arbitraryor capricious. See post, at 2513–2515 (dis-senting opinion).

The Government also looks for supportto cases holding that Congress has ‘‘plena-ry power’’ to create immigration law, andthat the Judicial Branch must defer toExecutive and Legislative Branch decision-making in that area. Brief for Respon-dents in No. 99–7791, at 17, 20 (citingHarisiades v. Shaughnessy, 342 U.S. 580,588–589, 72 S.Ct. 512, 96 L.Ed. 586 (1952)).But that power is subject to importantconstitutional limitations. See INS v.Chadha, 462 U.S. 919, 941–942, 103 S.Ct.2764, 77 L.Ed.2d 317 (1983) (Congressmust choose ‘‘a constitutionally permissiblemeans of implementing’’ that power); TheChinese Exclusion Case, 130 U.S. 581, 604,9 S.Ct. 623, 32 L.Ed. 1068 (1889) (congres-sional authority limited ‘‘by the Constitu-tion itself and considerations of public poli-cy and justice which control, more or less,the conduct of all civilized nations’’). Inthese cases, we focus upon those limita-tions. In doing so, we nowhere deny theright of Congress to remove aliens, tosubject them to supervision with conditionswhen released from detention, or to incar-cerate them where appropriate for viola-tions of those conditions. See 8 U.S.C.§ 1231(a)(3) (1994 ed., Supp. V) (grantingauthority to Attorney General to prescriberegulations governing supervision of aliensnot removed within 90 days); § 1253 (im-posing penalties for failure to comply with


release conditions). The question beforeus is not one of ‘‘ ‘confer[ring] on thoseadmitted the right to remain against thenational will’ ’’ or ‘‘ ‘sufferance of aliens’ ’’who should be removed. Post, at 2506(SCALIA, J., dissenting) (emphasis delet-ed) (quoting Mezei, 345 U.S., at 222–223,73 S.Ct. 625 (Jackson, J., dissenting)).Rather, the issue we address is whetheraliens that the Government finds itself un-able to remove are to be condemned to anindefinite term of imprisonment within theUnited States.

Nor do the cases before us require usto consider the political branches’ authori-ty to control entry into the United States.Hence we leave no ‘‘unprotected spot inthe NaStion’s696 armor.’’ Kwong HaiChew, 344 U.S., at 602, 73 S.Ct. 472. Nei-ther do we consider terrorism or otherspecial circumstances where special argu-ments might be made for forms of pre-ventive detention and for heightened def-erence to the judgments of the politicalbranches with respect to matters of na-tional security. The sole foreign policyconsideration the Government mentionshere is the concern lest courts interferewith ‘‘sensitive’’ repatriation negotiations.Brief for Respondents in No. 99–7791, at21. But neither the Government nor thedissents explain how a habeas court’s ef-forts to determine the likelihood of repa-triation, if handled with appropriate sensi-tivity, could make a significant differencein this respect. See infra, at 2503–2504.

Finally, the Government argues that,whatever liberty interest the aliens pos-sess, it is ‘‘greatly diminished’’ by theirlack of a legal right to ‘‘liv[e] at large inthis country.’’ Brief for Respondents inNo. 99–7791, at 47; see also post, at 2506(SCALIA, J., dissenting) (characterizingright at issue as ‘‘right to release into thiscountry’’). The choice, however, is notbetween imprisonment and the alien ‘‘liv-ing at large.’’ Brief for Respondents inNo. 99–7791, at 47. It is between impris-onment and supervision under release con-ditions that may not be violated. See su-pra, at 2501 (citing 8 U.S.C. §§ 1231(a)(3),

1253 (1994 ed., Supp. V)); 8 C.F.R. § 241.5(2001) (establishing conditions of releaseafter removal period). And, for the rea-sons we have set forth, we believe that analien’s liberty interest is, at the least,strong enough to raise a serious questionas to whether, irrespective of the proce-dures used, cf. post, at 2515–2517 (KEN-NEDY, J., dissenting), the Constitutionpermits detention that is indefinite andpotentially permanent.

B

Despite this constitutional problem, if‘‘Congress has made its intent’’ in the stat-ute ‘‘clear, ‘we must give effect to thatintent.’ ’’ Miller v. French, 530 U.S. 327,336, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000)(quoting Sinclair Refining Co. v. Atkin-son, 370 U.S. 195, 215, 82 S.Ct. 1328, 8L.Ed.2d 440 (1962)). S 697We cannot findhere, however, any clear indication of con-gressional intent to grant the AttorneyGeneral the power to hold indefinitely inconfinement an alien ordered removed.And that is so whether protecting the com-munity from dangerous aliens is a primaryor (as we believe) secondary statutory pur-pose. Cf. post, at 2507, 2508–2509 (KEN-NEDY, J., dissenting). After all, the pro-vision is part of a statute that has as itsbasic purpose effectuating an alien’s re-moval. Why should we assume that Con-gress saw the alien’s dangerousness asunrelated to this purpose?

The Government points to the statute’sword ‘‘may.’’ But while ‘‘may’’ suggestsdiscretion, it does not necessarily suggestunlimited discretion. In that respect theword ‘‘may’’ is ambiguous. Indeed, if Con-gress had meant to authorize long-termdetention of unremovable aliens, it certain-ly could have spoken in clearer terms. Cf.8 U.S.C. § 1537(b)(2)(C) (1994 ed., Supp.V) (‘‘If no country is willing to receive’’ aterrorist alien ordered removed, ‘‘the At-torney General may, notwithstanding anyother provision of law, retain the alien in


533 U.S. 699

custody’’ and must review the detentiondetermination every six months).

The Government points to similar relat-ed statutes that require detention of crimi-nal aliens during removal proceedings andthe removal period, and argues that theseshow that mandatory detention is the rulewhile discretionary release is the narrowexception. See Brief for Petitioners in No.00–38, at 26–28 (citing 8 U.S.C. §§ 1226(c),1231(a)(2)). But the statute before us ap-plies not only to terrorists and criminals,but also to ordinary visa violators, seesupra, at 2499; and, more importantly,post-removal-period detention, unlike de-tention pending a determination of remov-ability or during the subsequent 90–dayremoval period, has no obvious terminationpoint.

The Government also points to the stat-ute’s history. That history catalogs aseries of changes, from an initial period(before 1952) when lower courts had in-terpreted statutory S 698silence, Immigra-tion Act of 1917, ch. 29, §§ 19, 20, 39Stat. 889, 890, to mean that deportation-related detention must end within a rea-sonable time, Spector v. Landon, 209 F.2d481, 482 (C.A.9 1954) (collecting cases);United States ex rel. Doukas v. Wiley,160 F.2d 92, 95 (C.A.7 1947); UnitedStates ex rel. Ross v. Wallis, 279 F. 401,403–404 (C.A.2 1922), to a period (fromthe early 1950’s through the late 1980’s)when the statutes permitted, but did notrequire, post-deportation-order detentionfor up to six months, Immigration andNationality Act of 1952, § 242(c), 66 Stat.210, 8 U.S.C. § 1252(c), (d) (1982 ed.);Witkovich, 353 U.S., at 198, 77 S.Ct. 779,to more recent statutes that have attimes mandated and at other times per-mitted the post-deportation-order deten-tion of aliens falling into certain catego-ries such as aggravated felons, Anti–DrugAbuse Act of 1988, § 7343(a), 102 Stat.4470, 8 U.S.C. § 1252(a)(2) (mandatingdetention); Immigration Act of 1990,§ 504(a), 104 Stat. 5049–5050, 8 U.S.C.§§ 1252(a)(2)(A), (B) (permitting release

under certain circumstances); Miscellane-ous and Technical Immigration and Natu-ralization Amendments of 1991,§ 306(a)(4), 105 Stat. 1751, 8 U.S.C.§ 1252(a)(2)(B) (same).

In early 1996, Congress explicitly ex-panded the group of aliens subject to man-datory detention, eliminating provisionsthat permitted release of criminal alienswho had at one time been lawfully admit-ted to the United States. Antiterrorismand Effective Death Penalty Act of 1996,§ 439(c), 110 Stat. 1277. And later thatyear Congress enacted the present law,which liberalizes pre-existing law by shor-tening the removal period from six monthsto 90 days, mandates detention of certaincriminal aliens during the removal pro-ceedings and for the subsequent 90–dayremoval period, and adds the post-remov-al-period provision here at issue. IllegalImmigration Reform and Immigrant Re-sponsibility Act of 1996, Div. C, §§ 303,305, 110 Stat. 3009–585, 3009–598 to 3009–599; 8 U.S.C. §§ 1226(c), 1231(a) (1994 ed.,Supp. V).

S 699We have found nothing in the historyof these statutes that clearly demonstratesa congressional intent to authorize indefi-nite, perhaps permanent, detention. Con-sequently, interpreting the statute to avoida serious constitutional threat, we concludethat, once removal is no longer reasonablyforeseeable, continued detention is nolonger authorized by statute. See 1 E.Coke, Institutes *70b (‘‘Cessante rationelegis cessat ipse lex’’) (the rationale of alegal rule no longer being applicable, thatrule itself no longer applies).

IV

[6] The Government seems to arguethat, even under our interpretation of thestatute, a federal habeas court would haveto accept the Government’s view aboutwhether the implicit statutory limitation issatisfied in a particular case, conductinglittle or no independent review of the mat-ter. In our view, that is not so. Whether


a set of particular circumstances amountsto detention within, or beyond, a periodreasonably necessary to secure removal isdeterminative of whether the detention is,or is not, pursuant to statutory authority.The basic federal habeas corpus statutegrants the federal courts authority to an-swer that question. See 28 U.S.C.§ 2241(c)(3) (granting courts authority todetermine whether detention is ‘‘in viola-tion of the TTT laws TTT of the UnitedStates’’). In doing so the courts carry outwhat this Court has described as the ‘‘his-toric purpose of the writ,’’ namely, ‘‘torelieve detention by executive authoritieswithout judicial trial.’’ Brown v. Allen,344 U.S. 443, 533, 73 S.Ct. 397, 97 L.Ed.469 (1953) (Jackson, J., concurring in re-sult).

In answering that basic question, thehabeas court must ask whether the deten-tion in question exceeds a period reason-ably necessary to secure removal. Itshould measure reasonableness primarilyin terms of the statute’s basic purpose,namely, assuring the alien’s presence atthe moment of removal. Thus, if removalis not reasonably foreseeable, the courtshould hold continued detention unreason-able and no S 700longer authorized by stat-ute. In that case, of course, the alien’srelease may and should be conditioned onany of the various forms of supervisedrelease that are appropriate in the circum-stances, and the alien may no doubt bereturned to custody upon a violation ofthose conditions. See supra, at 2501 (cit-ing 8 U.S.C. §§ 1231(a)(3), 1253 (1994 ed.,Supp. V); 8 C.F.R. § 241.5 (2001)). And ifremoval is reasonably foreseeable, the ha-beas court should consider the risk of thealien’s committing further crimes as a fac-tor potentially justifying confinement with-in that reasonable removal period. Seesupra, at 2499.

We recognize, as the Government pointsout, that review must take appropriate ac-count of the greater immigration-relatedexpertise of the Executive Branch, of theserious administrative needs and concerns

inherent in the necessarily extensive INSefforts to enforce this complex statute, andthe Nation’s need to ‘‘speak with onevoice’’ in immigration matters. Brief forRespondents in No. 99–7791, at 19. Butwe believe that courts can take appropri-ate account of such matters without abdi-cating their legal responsibility to reviewthe lawfulness of an alien’s continued de-tention.

Ordinary principles of judicial review inthis area recognize primary ExecutiveBranch responsibility. They counseljudges to give expert agencies decision-making leeway in matters that invoke theirexpertise. See Pension Benefit GuarantyCorporation v. LTV Corp., 496 U.S. 633,651–652, 110 S.Ct. 2668, 110 L.Ed.2d 579(1990). They recognize Executive Branchprimacy in foreign policy matters. SeeContainer Corp. of America v. FranchiseTax Bd., 463 U.S. 159, 196, 103 S.Ct. 2933,77 L.Ed.2d 545 (1983). And they conse-quently require courts to listen with carewhen the Government’s foreign policyjudgments, including, for example, the sta-tus of repatriation negotiations, are at is-sue, and to grant the Government appro-priate leeway when its judgments restupon foreign policy expertise.

[7] We realize that recognizing thisnecessary Executive leeway will often callfor difficult judgments. In order to limitS 701the occasions when courts will need tomake them, we think it practically neces-sary to recognize some presumptively rea-sonable period of detention. We haveadopted similar presumptions in other con-texts to guide lower court determinations.See Cheff v. Schnackenberg, 384 U.S. 373,379–380, 86 S.Ct. 1523, 16 L.Ed.2d 629(1966) (plurality opinion) (adopting rule,based on definition of ‘‘petty offense’’ inUnited States Code, that right to jury trialextends to all cases in which sentence ofsix months or greater is imposed); Countyof Riverside v. McLaughlin, 500 U.S. 44,56–58, 111 S.Ct. 1661, 114 L.Ed.2d 49(1991) (O’CONNOR, J.) (adopting pre-


533 U.S. 703

sumption, based on lower court estimate oftime needed to process arrestee, that 48–hour delay in probable-cause hearing afterarrest is reasonable, hence constitutionallypermissible).

While an argument can be made forconfining any presumption to 90 days, wedoubt that when Congress shortened theremoval period to 90 days in 1996 it be-lieved that all reasonably foreseeable re-movals could be accomplished in that time.We do have reason to believe, however,that Congress previously doubted the con-stitutionality of detention for more than sixmonths. See Juris. Statement in UnitedStates v. Witkovich, O.T.1956, No. 295, pp.8–9. Consequently, for the sake of uni-form administration in the federal courts,we recognize that period. After this 6–month period, once the alien provides goodreason to believe that there is no signifi-cant likelihood of removal in the reason-ably foreseeable future, the Governmentmust respond with evidence sufficient torebut that showing. And for detention toremain reasonable, as the period of priorpostremoval confinement grows, whatcounts as the ‘‘reasonably foreseeable fu-ture’’ conversely would have to shrink.This 6–month presumption, of course, doesnot mean that every alien not removedmust be released after six months. To thecontrary, an alien may be held in confine-ment until it has been determined thatthere is no significant likelihood of removalin the reasonably foreseeable future.

S 702VThe Fifth Circuit held Zadvydas’ contin-

ued detention lawful as long as ‘‘good faithefforts to effectuate TTT deportation con-tinue’’ and Zadvydas failed to show thatdeportation will prove ‘‘impossible.’’ 185F.3d, at 294, 297. But this standard wouldseem to require an alien seeking release toshow the absence of any prospect of re-moval—no matter how unlikely or unfore-seeable—which demands more than ourreading of the statute can bear. TheNinth Circuit held that the Government

was required to release Ma from detentionbecause there was no reasonable likelihoodof his removal in the foreseeable future.208 F.3d, at 831. But its conclusion mayhave rested solely upon the ‘‘absence’’ ofan ‘‘extant or pending’’ repatriation agree-ment without giving due weight to thelikelihood of successful future negotiations.See id., at 831, and n. 30. Consequently,we vacate the judgments below and re-mand both cases for further proceedingsconsistent with this opinion.

It is so ordered.

Justice SCALIA, with whom JusticeTHOMAS joins, dissenting.

I join Part I of Justice KENNEDY’sdissent, which establishes the AttorneyGeneral’s clear statutory authority to de-tain criminal aliens with no specified timelimit. I write separately because I do notbelieve that, as Justice KENNEDY sug-gests in Part II of his opinion, there maybe some situations in which the courts canorder release. I believe that in both Zad-vydas v. Davis, No. 99–7791, and Ashcroftv. Ma, No. 00–38, a ‘‘careful description’’ ofthe substantive right claimed, Reno v.Flores, 507 U.S. 292, 302, 113 S.Ct. 1439,123 L.Ed.2d 1 (1993), suffices categoricallyto refute its existence. A criminal alienunder final order of removal who allegedlywill not be accepted by any other countryin the reasonably foreseeable future claimsa constitutional right of supervised releaseinto the United States. This claim can berepackaged as freedom S 703from ‘‘physicalrestraint’’ or freedom from ‘‘indefinite de-tention,’’ ante, at 2498, but it is at bottom aclaimed right of release into this countryby an individual who concededly has nolegal right to be here. There is no suchconstitutional right.

Like a criminal alien under final order ofremoval, an inadmissible alien at the bor-der has no right to be in the United States.The Chinese Exclusion Case, 130 U.S. 581,603, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). InShaughnessy v. United States ex rel. Mez-


ei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956(1953), we upheld potentially indefinite de-tention of such an inadmissible alien whomthe Government was unable to return any-where else. We said that ‘‘we [did] notthink that respondent’s continued exclu-sion deprives him of any statutory or con-stitutional right.’’ Id., at 215, 73 S.Ct. 625.While four Members of the Court thoughtthat Mezei deserved greater proceduralprotections (the Attorney General had re-fused to divulge any information as to whyMezei was being detained, id., at 209, 73S.Ct. 625), no Justice asserted that Mezeihad a substantive constitutional right torelease into this country. And JusticeJackson’s dissent, joined by Justice Frank-furter, affirmatively asserted the opposite,with no contradiction from the Court:‘‘Due process does not invest any alienwith a right to enter the United States,nor confer on those admitted the right toremain against the national will. Noth-ing in the Constitution requires admissionor sufferance of aliens hostile to ourscheme of government.’’ Id., at 222–223,73 S.Ct. 625 (emphasis added). Insofar asa claimed legal right to release into thiscountry is concerned, an alien under finalorder of removal stands on an equal foot-ing with an inadmissible alien at thethreshold of entry: He has no such right.

The Court expressly declines to apply oroverrule Mezei, ante, at 2501, but attemptsto distinguish it—or, I should rather say,to obscure it in a legal fog. First, theCourt claims that ‘‘[t]he distinction be-tween an alien who has effected an entryinto the United States and one who hasnever entered runs throughout immigra-tion law.’’ Ante, at 2500. True enough,but only where that distinction makes per-fect S 704sense: with regard to the question

of what procedures are necessary to pre-vent entry, as opposed to what proceduresare necessary to eject a person already inthe United States. See, e.g., Landon v.Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321,74 L.Ed.2d 21 (1982) (‘‘Our cases havefrequently suggested that a continuouslypresent resident alien is entitled to a fairhearing when threatened with deporta-tion’’ (emphasis added)). The Court’s cita-tion of Wong Wing v. United States, 163U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896),for the proposition that we have ‘‘held thatthe Due Process Clause protects an aliensubject to a final order of deportation,’’ante, at 2501, is arguably relevant. Thatcase at least involved aliens under finalorder of deportation.* But all it held isthat they could not be subjected to thepunishment of hard labor without a judicialtrial. I am sure they cannot be tortured,as well—but neither prohibition has any-thing to do with their right to be releasedinto the United States. Nor does WongWing show that the rights of detainedaliens subject to final order of deportationare different from the rights of aliens ar-rested and detained at the border—unlessthe Court believes that the detained alienin Mezei could have been set to hard labor.

Mezei thus stands unexplained and un-distinguished by the Court’s opinion. Weare offered no justification why an alienunder a valid and final order of removal—which has totally extinguished whateverright to presence in this country he pos-sessed—has any greater due process rightto be released into the country than analien at the border seeking entry.S 705Congress undoubtedly thought thatboth groups of aliens—inadmissible aliensat the threshold and criminal aliens underfinal order of removal—could be constitu-

* The Court also cites Landon v. Plasencia, 459U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982),as oblique support for the claim that the dueprocess protection afforded aliens under finalorder of removal ‘‘may vary depending uponstatus and circumstance.’’ Ante, at 2501.But that case is entirely inapt because it didnot involve an alien subject to a final order of

deportation. The Court also cites Johnson v.Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936,94 L.Ed. 1255 (1950), ante, at 2501, but thatcase is doubly irrelevant: because it dealt notwith deportation but with the military’s deten-tion of enemy aliens outside the territorialjurisdiction of the United States, and becauseit rejected habeas corpus jurisdiction anyway.


533 U.S. 707

tionally detained on the same terms, sinceit provided the authority to detain bothgroups in the very same statutory provi-sion, see 8 U.S.C. § 1231(a)(6). Because Ibelieve Mezei controls these cases, and,like the Court, I also see no reason toreconsider Mezei, I find no constitutionalimpediment to the discretion Congressgave to the Attorney General. JusticeKENNEDY’s dissent explains the clarityof the detention provision, and I see noobstacle to following the statute’s plainmeaning.

Justice KENNEDY, with whom THECHIEF JUSTICE joins, and with whomJustice SCALIA and Justice THOMASjoin as to Part I, dissenting.

The Court says its duty is to avoid aconstitutional question. It deems the dutyperformed by interpreting a statute in ob-vious disregard of congressional intent;curing the resulting gap by writing a stat-utory amendment of its own; committingits own grave constitutional error by arro-gating to the Judicial Branch the power tosummon high officers of the Executive toassess their progress in conducting someof the Nation’s most sensitive negotiationswith foreign powers; and then likely re-leasing into our general population at leasthundreds of removable or inadmissiblealiens who have been found by fair proce-dures to be flight risks, dangers to thecommunity, or both. Far from avoiding aconstitutional question, the Court’s rulingcauses systemic dislocation in the balanceof powers, thus raising serious constitu-tional concerns not just for the cases athand but for the Court’s own view of itsproper authority. Any supposed respectthe Court seeks in not reaching the consti-tutional question is outweighed by the in-trusive and erroneous exercise of its ownpowers. In the guise of judicial restraintthe Court ought not to intrude upon theother branches. The constitutional ques-tion the statute presents, it must be ack-nowlSedged,706 may be a significant one insome later case; but it ought not to drive

us to an incorrect interpretation of thestatute. The Court having reached thewrong result for the wrong reason, thisrespectful dissent is required.

IThe Immigration and Nationality Act

(INA), 8 U.S.C. § 1101 et seq. (1994 ed.and Supp. V), is straightforward enough.It provides:

‘‘An alien ordered removed who is in-admissible under section 1182 of thistitle, removable under section1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) ofthis title or who has been determined bythe Attorney General to be a risk to thecommunity or unlikely to comply withthe order of removal, may be detainedbeyond the removal period and, if re-leased, shall be subject to the terms ofsupervision in paragraph (3).’’ 8 U.S.C.§ 1231(a)(6) (1994 ed., Supp. V).

By this statute, Congress confers uponthe Attorney General discretion to detainan alien ordered removed. It gives ex-press authorization to detain ‘‘beyond theremoval period.’’ Ibid. The class of re-moved aliens detainable under the sectionincludes aliens who were inadmissible andaliens subject to final orders of removal,provided they are a risk to the communityor likely to flee. The issue to be deter-mined is whether the authorization to de-tain beyond the removal period is subjectto the implied, nontextual limitation thatthe detention be no longer than reasonablynecessary to effect removal to anothercountry. The majority invokes the canonof constitutional doubt to read that impliedterm into the statute. One can accept thepremise that a substantial constitutionalquestion is presented by the prospect oflengthy, even unending, detention in someinstances; but the statutory constructionthe Court adopts should be rejected in anyevent. The interpretation has no basis inthe lanSguage707 or structure of the INAand in fact contradicts and defeats thepurpose set forth in the express terms ofthe statutory text.


The Court, it is submitted, misunder-stands the principle of constitutional avoid-ance which it seeks to invoke. The majori-ty gives a brief bow to the rule that courtsmust respect the intention of Congress,ante, at 2502, but then waltzes away fromany analysis of the language, structure, orpurpose of the statute. Its analysis is notconsistent with our precedents explainingthe limits of the constitutional doubt rule.The rule allows courts to choose amongconstructions which are ‘‘fairly possible,’’Crowell v. Benson, 285 U.S. 22, 62, 52S.Ct. 285, 76 L.Ed. 598 (1932), not to‘‘ ‘press statutory construction to the pointof disingenuous evasion even to avoid aconstitutional question,’ ’’ Salinas v. Unit-ed States, 522 U.S. 52, 60, 118 S.Ct. 469,139 L.Ed.2d 352 (1997) (quoting SeminoleTribe of Fla. v. Florida, 517 U.S. 44, 57, n.9, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)).Were a court to find two interpretations ofequal plausibility, it should choose the con-struction that avoids confronting a consti-tutional question. The majority’s readingof the statutory authorization to ‘‘detai[n]beyond the removal period,’’ however, isnot plausible. An interpretation which de-feats the stated congressional purposedoes not suffice to invoke the constitutionaldoubt rule, for it is ‘‘plainly contrary to theintent of Congress.’’ United States v. X–Citement Video, Inc., 513 U.S. 64, 78, 115S.Ct. 464, 130 L.Ed.2d 372 (1994). Themajority announces it will reject the Gov-ernment’s argument ‘‘that the statutemeans what it literally says,’’ ante, at 2498,but then declines to offer any other accept-able textual interpretation. The majoritydoes not demonstrate an ambiguity in thedelegation of the detention power to theAttorney General. It simply amends thestatute to impose a time limit tied to theprogress of negotiations to effect thealiens’ removal. The statute cannot be soconstrued. The requirement the majorityreads into the law simply bears no relationto the text; and in fact it defeats thestatutory purpose and design.

S 708Other provisions in § 1231 itself dolink the requirement of a reasonable timeperiod to the removal process. See, e.g.,§ 1231(c)(1)(A) (providing that an alienwho arrives at a port of entry ‘‘shall beremoved immediately on a vessel or air-craft’’ unless ‘‘it is impracticable’’ to do so‘‘within a reasonable time’’ (emphasis add-ed)); § 1231(c)(3)(A)(ii)(II) (requiring the‘‘owner of a vessel or aircraft bringing analien to the United States [to] pay thecosts of detaining and maintaining thealien TTT for the period of time reasonablynecessary for the owner to arrange forrepatriation’’ (emphasis added)). ThatCongress chose to impose the limitation inthese sections and not in § 1231(a)(6) isevidence of its intent to measure the de-tention period by other standards. WhenCongress has made express provisions forthe contingency that repatriation might bedifficult or prolonged in other portions ofthe statute, it should be presumed that itsomission of the same contingency in thedetention section was purposeful. Indeed,the reasonable time limits in the provi-sions just mentioned simply excuse theduty of early removal. They do not man-date release. An alien within one of thesecategories, say, a ship stowaway, would besubject as well to detention beyond the re-moval period under § 1231(a)(6), if thestatute is read as written. Under themajority’s view, however, it appears thealien must be released in six months evenif presenting a real danger to the commu-nity.

The 6–month period invented by theCourt, even when modified by its slidingstandard of reasonableness for certain re-patriation negotiations, see ante, at 2504–2505, makes the statutory purpose to pro-tect the community ineffective. The riskto the community exists whether or notthe repatriation negotiations have someend in sight; in fact, when the negotiationsend, the risk may be greater. The author-ity to detain beyond the removal period isto protect the community, not to negotiatethe aliens’ return. The risk to the commu-


533 U.S. 710

nity survives repatriation negotiations. Toa more limited, but still significant, extent,so does the concern with flight. It S 709is afact of international diplomacy that gov-ernments and their policies change; and ifrepatriation efforts can be revived, the At-torney General has an interest in ensuringthe alien can report so the removal processcan begin again.

Congress, moreover, was well aware ofthe difficulties confronting aliens who areremovable but who cannot be repatriated.It made special provisions allowing themto be employed, a privilege denied to otherdeportable aliens. See § 1231(a)(7) (pro-viding an ‘‘alien [who] cannot be removeddue to the refusal of all countries designat-ed by the alien or under this section toreceive the alien’’ still remains eligible foremployment in the United States). Con-gress’ decision to ameliorate the conditionof aliens subject to a final order of removalwho cannot be repatriated, but who neednot be detained, illustrates a balance in thestatutory design. Yet the Court rendersthe other side of the balance meaningless.The risk to the community posed by aremovable alien is a function of a variety ofcircumstances, circumstances that do notdiminish just because the alien cannot bedeported within some foreseeable time.Those circumstances include the serious-ness of the alien’s past offenses, his or herefforts at rehabilitation, and some indica-tion from the alien that, given the realprospect of detention, the alien will con-form his or her conduct. This is the pur-pose for the periodic review of detentionstatus provided for by the regulations.See 8 C.F.R. § 241.4 (2001). The Court’samendment of the statute reads out of theprovision the congressional decision thatdangerousness alone is a sufficient basisfor detention, see ante, at 2503 (citing 1 E.Coke, Institutes *70b), and reads out aswell any meaningful structure for super-vised release.

The majority is correct to observe thatin United States v. Witkovich, 353 U.S.194, 77 S.Ct. 779, 1 L.Ed.2d 765 (1957), the

Court ‘‘read significant limitations into’’ astatute, ante, at 2498, but that does notpermit us to avoid the proper reading ofthe enactment now before us. In Witko-vich, the Court construed former§ 1252(d), which required an alien under afinal order of deSportation710 ‘‘to give infor-mation under oath TTT as the AttorneyGeneral may deem fit and proper.’’ 353U.S., at 195, 77 S.Ct. 779. The Court heldthat although the plain language ‘‘appearsto confer upon the Attorney General un-bounded authority to require whatever in-formation he deems desirable of alienswhose deportation has not been effectedwithin six months,’’ id., at 199, 77 S.Ct.779, the constitutional doubt this interpre-tation would raise meant the languagewould be construed as limited to the provi-sion of information ‘‘reasonably calculatedto keep the Attorney General advised re-garding the continued availability for de-parture of aliens whose deportation isoverdue,’’ id., at 202, 77 S.Ct. 779. InWitkovich the interpretation of the textwas in aid of the statutory purpose; in theinstant cases the interpretation nullifiesthe statutory purpose. Here the statuteby its own terms permits the AttorneyGeneral to consider factors the Court nowmakes irrelevant.

The majority’s unanchored interpreta-tion ignores another indication that theAttorney General’s detention discretionwas not limited to this truncated period.Section 1231(a)(6) permits continued de-tention not only of removable aliens butalso of inadmissible aliens, for instancethose stopped at the border before entry.Congress provides for detention of bothcategories within the same statutory grantof authority. Accepting the majority’s in-terpretation, then, there are two possibili-ties, neither of which is sustainable. Onthe one hand, it may be that the majority’srule applies to both categories of aliens, inwhich case we are asked to assume thatCongress intended to restrict the discre-tion it could confer upon the AttorneyGeneral so that all inadmissible aliens


must be allowed into our community withinsix months. On the other hand, the major-ity’s logic might be that inadmissible andremovable aliens can be treated different-ly. Yet it is not a plausible construction of§ 1231(a)(6) to imply a time limit as to oneclass but not to another. The text doesnot admit of this possibility. As a result, itis difficult to see why ‘‘[a]liens who havenot yet gained initial admission S 711to thiscountry would present a very differentquestion.’’ Ante, at 2495.

Congress’ power to detain aliens in con-nection with removal or exclusion, theCourt has said, is part of the Legislature’sconsiderable authority over immigrationmatters. See, e.g., Wong Wing v. UnitedStates, 163 U.S. 228, 235, 16 S.Ct. 977, 41L.Ed. 140 (1896) (‘‘Proceedings to excludeor expel would be vain if those accusedcould not be held in custody pending theinquiry into their true character and whilearrangements were being made for theirdeportation’’). It is reasonable to assume,then, and it is the proper interpretation ofthe INA and § 1231(a)(6), that when Con-gress provided for detention ‘‘beyond theremoval period,’’ it exercised its considera-ble power over immigration and delegatedto the Attorney General the discretion todetain inadmissible and other removablealiens for as long as they are determinedto be either a flight risk or a danger to theNation.

The majority’s interpretation, moreover,defeats the very repatriation goal in whichit professes such interest. The Courtrushes to substitute a judicial judgment forthe Executive’s discretion and authority.As the Government represents to us, judi-cial orders requiring release of removablealiens, even on a temporary basis, have thepotential to undermine the obvious necessi-ty that the Nation speak with one voice onimmigration and foreign affairs matters.Brief for Respondents in No. 99–7791, p.49. The result of the Court’s rule is that,by refusing to accept repatriation of theirown nationals, other countries can effectthe release of these individuals back into

the American community. Ibid. If theirown nationals are now at large in theUnited States, the nation of origin mayignore or disclaim responsibility to accepttheir return. Ibid. The interference withsensitive foreign relations becomes evenmore acute where hostility or tension char-acterizes the relationship, for other coun-tries can use the fact of judicially mandat-ed release to their strategic advantage,refusing the return of their nationSals712 toforce dangerous aliens upon us. One ofthe more alarming aspects of the Court’snew venture into foreign affairs manage-ment is the suggestion that the districtcourt can expand or contract the reason-able period of detention based on its ownassessment of the course of negotiationswith foreign powers. The Court says itwill allow the Executive to perform itsduties on its own for six months; afterthat, foreign relations go into judiciallysupervised receivership.

The cases which the Court relies upon tosupport the imposition of presumptions areinapposite. The rule announced in Cheff v.Schnackenberg, 384 U.S. 373, 86 S.Ct.1523, 16 L.Ed.2d 629 (1966)—‘‘that sen-tences exceeding six months for criminalcontempt may not be imposed by federalcourts absent a jury trial’’—was based onthe definition of a ‘‘petty offense’’ that wasstill operable in the United States Code,and was proper ‘‘under the peculiar powerof the federal courts to revise sentences incontempt cases.’’ Id., at 380, 86 S.Ct.1523. The majority can point to no similarstatutory or judicial source for its authori-ty to create its own time-based rule inthese cases. It cites only an observationin a brief filed by the Government in Unit-ed States v. Witkovich, O.T.1956, No. 295,pp. 8–9, see ante, at 2505, relying, in turn,on doubts expressed in a 1952 Senate Re-port concerning detention for longer thansix months under an Act with standardsdifferent from, and far less precise thanthose applicable here. In County of Riv-erside v. McLaughlin, 500 U.S. 44, 111S.Ct. 1661, 114 L.Ed.2d 49 (1991), our


533 U.S. 714

reasonableness presumption for delays ofless than 48 hours between an arrest and aprobable-cause hearing was, as the majori-ty recognizes, ante, at 2504–2505, based onthe ‘‘Court of Appeals’ determination ofthe time required to complete those proce-dures.’’ 500 U.S., at 57, 111 S.Ct. 1661.Here, as far as we know, the 6–monthperiod bears no particular relationship tohow long it now takes to deport any groupof aliens, or, for that matter, how long ittook in the past to remove. Zadvydas’case itself demonstrates that the repatria-tion process may often take years toS 713negotiate, involving difficult issues ofestablishing citizenship and the like. SeeBrief for Petitioner in No. 99–7791, pp. 17–20.

It is to be expected that from time totime a foreign power will adopt a truculentstance with respect to the United Statesand other nations. Yet the Court by itstime limit, or presumptive time limit, goesfar to undercut the position of the Execu-tive in repatriation negotiations, thus illserving the interest of all foreign nationalsof the country concerned. Law-abidingaliens might wish to return to their homecountry, for instance, but the strained rela-tionship caused by the difficult repatriationtalks might prove to be a substantial ob-stacle for these aliens as well.

In addition to weakening the hand of ourGovernment, court ordered release cannothelp but encourage dilatory and obstruc-tive tactics by aliens who, emboldened bythe Court’s new rule, have good reason notto cooperate by making their own repatria-tion or transfer seem foreseeable. Analien ordered deported also has less incen-tive to cooperate or to facilitate expedi-tious removal when he has been released,even on a supervised basis, than does analien held at an Immigration and Natural-ization Service (INS) detention facility.Neither the alien nor his family would findany urgency in assisting with a petition toother countries to accept the alien back ifthe alien could simply remain in the Unit-ed States indefinitely.

The risk to the community posed bythe mandatory release of aliens who aredangerous or a flight risk is far from in-substantial; the motivation to protect thecitizenry from aliens determined to bedangerous is central to the immigrationpower itself. The Government cites sta-tistical studies showing high recidivismrates for released aliens. One Govern-ment Accounting Office study cited byCongress in floor debates on the Antiter-rorism and Effective Death Penalty Actof 1996, 110 Stat. 1214, put the figure ashigh as 77 percent. 142 Cong. Rec. 7972(1996); Brief for Respondents in S 714No.99–7791, at 27, n. 13. It seems evident acriminal record accumulated by an admit-ted alien during his or her time in theUnited States is likely to be a better indi-cator of risk than factors relied upon dur-ing the INS’s initial decision to admit orexclude. Aliens ordered deported as theresult of having committed a felony haveproved to be dangerous.

Any suggestion that aliens who havecompleted prison terms no longer presenta danger simply does not accord with thereality that a significant risk may still ex-ist, as determined by the many factors setforth in the regulations. See 8 C.F.R.§ 241.4(f) (2001). Underworld and terror-ist links are subtle and may be overseas,beyond our jurisdiction to impose felonycharges. Furthermore, the majority’s ra-tionale seems to apply to an alien who fleesprosecution or escapes from custody insome other country. The fact an alien canbe deemed inadmissible because of fraudat the time of entry does not necessarilydistinguish his or her case from an alienwhose entry was legal. Consider, for ex-ample, a fugitive alien who enters by fraudor stealth and resides here for five yearswith significant ties to the community,though still presenting a danger; contrasthim with an alien who entered lawfully buta month later committed an act makinghim removable. Why the Court’s rationaleshould apply to the second alien but notthe first is not apparent.


The majority cannot come to terms withthese distinctions under its own rationale.The rule the majority creates permits con-sideration of nothing more than the rea-sonable foreseeability of removal. Seeante, at 2504. That standard is not onlywithout sound basis in the statutory struc-ture, but also is not susceptible to custom-ary judicial inquiry. Cf. INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439,143 L.Ed.2d 590 (1999) (‘‘The judiciary isnot well positioned to shoulder primaryresponsibility for assessing the likelihoodand importance of such diplomatic reper-cussions’’). The majority does say that therelease of terrorists or other ‘‘special cir-cumstances’’ might justify ‘‘heightened def-erence to the judgments of the politiScal715

branches with respect to matters of nation-al security.’’ Ante, at 2502. Here theCourt appears to rely on an assessment ofrisk, but this is the very premise it findsinadequate to sustain the natural readingof the statute. The Court ought not toreject a rationale in order to deny powerto the Attorney General and then invokethe same rationale to save its own analysis.

This rule of startling breadth invitespotentially perverse results. Because oth-er nations may refuse to admit aliens whohave committed certain crimes—see, e.g.,Brief for Petitioner in No. 99–7791, at 19(‘‘Lithuanian law precludes granting of citi-zenship to persons who, before coming toLithuania, have been sentenced in anotherstate to imprisonment for a deliberatecrime for which criminal liability is im-posed by the laws of the Republic of Li-thuania’’ (citations and internal quotationmarks omitted))—often the aliens whohave committed the most serious crimeswill be those who may be released immedi-ately under the majority’s rule. An exam-ple is presented in the case of SaroeutOurk, a Cambodian alien determined to beremovable and held pending deportation.See Ourk v. INS, No. 00–35645 (CA9,Sept. 18, 2000), cert. pending, No. 00–987.Ourk was convicted of rape by use of

drugs in conjunction with the kidnaping ofa 13–year–old girl; after serving 18months of his prison term, he was releasedon parole but was returned to custodytwice more for parole violations. Pet. forCert. in No. 00–987, pp. 4–5. When hewas ordered deported and transferred tothe custody of the INS, it is no surprisethe INS determined he was both a flightrisk and a danger to the community. Yetthe Court of Appeals for the Ninth Circuitconcluded, based on its earlier decision inKim Ho Ma v. Reno, 208 F.3d 815 (C.A.92000), that Ourk could no longer be heldpending deportation, since removal toCambodia was not reasonably foreseeable.App. to Pet. for Cert. in No. 00–987, pp.3a–4a. See also Phetsany v. INS, No. 00–16286 (C.A.9, Sept. 18, 2000), cert. pend-ing, No. 00–986 (requiring release of anative and S 716citizen of Laos convicted ofattempted, premeditated murder); Moun-saveng v. INS, No. 00–15309 (C.A.9, Aug.11, 2000), cert. pending, No. 00–751 * (re-leasing a citizen of Laos convicted of rapeof a 15–year–old girl and reckless endan-germent for involvement in a fight inwhich gunshots were fired); Lim v. Reno,No. 99–36191 (C.A.9, Aug. 14, 2000), cert.pending, No. 00–777 (releasing a Cambodi-an convicted of rape and robbery);Phuong Phuc Le v. INS, No. 00–16095(C.A.9, Sept. 18, 2000), cert. pending, No.00–1001 (releasing a Vietnamese citizenconvicted of voluntary manslaughter in acrime involving the attempted murder oftwo other persons). Today’s result willensure these dangerous individuals, andhundreds more like them, will remain freewhile the Executive Branch tries to securetheir removal. By contrast, aliens whoviolate mere tourist visa requirements,ante, at 2499, can in the typical case beheld pending deportation on grounds thata minor offender is more likely to be re-moved. There is no reason to supposeCongress intended this odd result.

The majority’s rule is not limited toaliens once lawfully admitted. Today’s re-sult may well mandate the release of those

* [Reporter’s Note: See post, 533 U.S. 943, 121 S.Ct. p. 2582.]


533 U.S. 718

aliens who first gained entry illegally or byfraud, and, indeed, is broad enough torequire even that inadmissible and exclud-able aliens detained at the border be setfree in our community. In Rosales–Gar-cia v. Holland, 238 F.3d 704, 725 (C.A.62001), for example, Rosales, a Cuban citi-zen, arrived in this country during the1980 Mariel boatlift. Id., at 707. Uponarrival in the United States, Rosales wasreleased into the custody of a relative un-der the Attorney General’s authority toparole illegal aliens, see 8 U.S.C.§ 1182(d)(5)(A), and there he committedmultiple crimes for which he was convictedand imprisoned. 238 F.3d, at 707–708.While serving a sentence for burglary andgrand larceny, Rosales escaped from pris-on, another of the offenses S 717for which heultimately served time. Id., at 708. TheINS eventually revoked Rosales’ immigra-tion parole, ordered him deported, andheld him pending deportation, subject toperiodic consideration for parole under theCuban Review Plan. See 8 C.F.R.§ 212.12(g)(2) (2001). In reasoning re-markably similar to the majority’s, theCourt of Appeals for the Sixth Circuit heldthat the indefinite detention of Rosalesviolated Fifth Amendment due processrights, because ‘‘the government has of-fered TTT no credible proof that there isany possibility that Cuba may accept Ro-sales’s return anytime in the foreseeablefuture.’’ 238 F.3d, at 725. This result—that Mariel Cubans and other illegal, inad-missible aliens will be released notwith-standing their criminal history and obviousflight risk—would seem a necessary conse-quence of the majority’s construction ofthe statute.

The majority’s confidence that the Judi-ciary will handle these matters ‘‘with ap-propriate sensitivity,’’ ante, at 2502, 2504,allows no meaningful category to confineor explain its own sweeping rule, providesno justification for wresting this sovereignpower away from the political branches inthe first place, and has no support in judi-

cially manageable standards for decidingthe foreseeability of removal.

It is curious that the majority wouldapprove of continued detention beyond the90–day period, or, for that matter, duringthe 90–day period, where deportation isnot reasonably foreseeable. If the INScannot detain an alien because he is dan-gerous, it would seem irrelevant to theConstitution or to the majority’s presump-tion that the INS has detained the alienfor only a little while. The reason deten-tion is permitted at all is that a removablealien does not have the same liberty inter-est as a citizen does. The Court cannotbring itself to acknowledge this establishedproposition. Likewise, it is far from evi-dent under the majority’s theory why theINS can condition and supervise the re-lease of aliens who are not removable inthe reasonably foreseeable future, or why‘‘the alien may no doubt be returned tocustody upon S 718a violation of those condi-tions.’’ Ante, at 2504. It is true thatthreat of revocation of supervised releaseis necessary to make the supervised re-lease itself effective, a fact even counsel forZadvydas acknowledged. Brief for Peti-tioner in No. 99–7791, at 20–21. If that isso, however, the whole foundation for theCourt’s position collapses.

The Court today assumes a role in for-eign relations which is unprecedented, un-fortunate, and unwise. Its misstep resultsin part from a misunderstanding of theliberty interests these aliens retain, an is-sue next to be discussed.

II

The aliens’ claims are substantial; theirplight is real. They face continued deten-tion, perhaps for life, unless it is shownthey no longer present a flight risk or adanger to the community. In a later casethe specific circumstances of a detentionmay present a substantial constitutionalquestion. That is not a reason, however,for framing a rule which ignores the lawgoverning alien status.


As persons within our jurisdiction, thealiens are entitled to the protection of theDue Process Clause. Liberty under theDue Process Clause includes protectionagainst unlawful or arbitrary personal re-straint or detention. The liberty rights ofthe aliens before us here are subject tolimitations and conditions not applicable tocitizens, however. See, e.g., Mathews v.Diaz, 426 U.S. 67, 79–80, 96 S.Ct. 1883, 48L.Ed.2d 478 (1976) (‘‘In the exercise of itsbroad power over naturalization and immi-gration, Congress regularly makes rulesthat would be unacceptable if applied tocitizens’’). No party to this proceedingcontests the initial premise that the alienshave been determined to be removableafter a fair hearing under lawful and prop-er procedures. Section 1229a sets forththe proceedings required for deciding theinadmissibility or removability of an alien,including a hearing before an immigrationjudge, at which the INS carries ‘‘the bur-den of establishing by clear and convincingevidence that TTT the alien is deportable.’’8 S 719U.S.C. § 1229a(c)(3)(A); see also Ber-enyi v. District Director, INS, 385 U.S.630, 636, 87 S.Ct. 666, 17 L.Ed.2d 656(1967) (‘‘When the Government seeks toTTT deport a resident alien and send himfrom our shores, it carries the heavy bur-den of proving its case by clear, unequivo-cal, and convincing evidence’’ (internalquotation marks and footnotes omitted)).Aliens ordered removed pursuant to theseprocedures are given notice of their rightto appeal the decision, 8 U.S.C.§ 1229a(c)(4), may move the immigrationjudge to reconsider, § 1229a(c)(5), canseek discretionary cancellation of removal,§ 1229b, and can obtain habeas review ofthe Attorney General’s decision not to con-sider waiver of deportation. See INS v.St. Cyr, ante, 533 U.S., at 314, 121 S.Ct.2271. As a result, aliens like Zadvydasand Ma do not arrive at their removablestatus without thorough, substantial proce-dural safeguards.

The majority likely is correct to say thatthe distinction between an alien who en-

tered the United States, as these aliensdid, and one who has not, ‘‘runs through-out immigration law.’’ Ante, at 2500. Thedistinction is not so clear as it might seem,however, and I doubt it will suffice toconfine the rationale adopted by the ma-jority. The case which often comes tomind when one tests the distinction isShaughnessy v. United States ex rel. Mez-ei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956(1953), where the Court considered thesituation of an alien denied entry and de-tained on Ellis Island. The detention hadno foreseeable end, for though Mezei wasinadmissible to the United States itseemed no other country would have him.Id., at 209, 73 S.Ct. 625. The case pre-sented a line-drawing problem, askingwhether the alien was in our country; orwhether his situation was the same as if hewere still on foreign shores; or whether hefell in a legal category somewhere in be-tween, though if this were true, it stillwould not be clear how to resolve the case.The Court held the alien had no right to ahearing to secure his release. Id., at 212–213, 73 S.Ct. 625. (Approximately 17months after this Court denied Mezei re-lief, the Attorney General released him onparole. It appears Mezei S 720never re-turned to INS custody, though he was notadmitted to the United States as a citizenor lawful permanent resident. See Weis-selberg, The Exclusion and Detention ofAliens: Lessons From the Lives of EllenKnauff and Ignatz Mezei, 143 U. Pa.L.Rev. 933, 979–984 (1995).)

Here the majority says the earlier pres-ence of these aliens in the United Statesdistinguishes the cases from Mezei. Forreasons given here it is submitted the ma-jority is incorrect in its major conclusionsin all events, so even if it were assumedthese aliens are in a class with more rightsthan Mezei, it makes no difference. Forpurposes of this dissent it is not necessaryto rely upon Mezei.

That said, it must be made clear thesealiens are in a position far different fromaliens with a lawful right to remain here.


533 U.S. 722

They are removable, and their rights mustbe defined in accordance with that status.The due process analysis must begin witha ‘‘careful description of the assertedright.’’ Reno v. Flores, 507 U.S. 292, 302,113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Wehave ‘‘long held that an alien seeking ini-tial admission to the United States re-quests a privilege and has no constitutionalrights regarding his application, for thepower to admit or exclude aliens is a sov-ereign prerogative.’’ Landon v. Plasen-cia, 459 U.S. 21, 32, 103 S.Ct. 321, 74L.Ed.2d 21 (1982). The same is true forthose aliens like Zadvydas and Ma, whoface a final order of removal. When analien is removable, he or she has no rightunder the basic immigration laws to re-main in this country. The removal ordersreflect the determination that the aliens’ties to this community are insufficient tojustify their continued presence in theUnited States. An alien’s admission tothis country is conditioned upon compli-ance with our laws, and removal is theconsequence of a breach of that under-standing.

It is true the Court has accorded moreprocedural protections to those aliens ad-mitted to the country than those stoppedat the border, observing that ‘‘a continu-ously present alien is entitled to a fairhearing when threatened withS 721deportation.’’ Ibid.; Mezei, supra, at212, 73 S.Ct. 625 (‘‘[A]liens who have oncepassed through our gates, even illegally,may be expelled only after proceedingsconforming to traditional standards of fair-ness encompassed in due process of lawTTT. But an alien on the threshold of initialentry stands on a different footing: ‘What-ever the procedure authorized by Con-gress is, it is due process as far as an aliendenied entry is concerned’ ’’ (quoting Unit-ed States ex rel. Knauff v. Shaughnessy,338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed.317 (1950))). Removable and excludablealiens are situated differently before anorder of removal is entered; the remova-ble alien, by virtue of his continued pres-

ence here, possesses an interest in remain-ing, while the excludable alien seeks onlythe privilege of entry.

Still, both removable and inadmissiblealiens are entitled to be free from deten-tion that is arbitrary or capricious. Wheredetention is incident to removal, the deten-tion cannot be justified as punishment norcan the confinement or its conditions bedesigned in order to punish. See WongWing v. United States, 163 U.S. 228, 16S.Ct. 977, 41 L.Ed. 140 (1896). This ac-cords with international views on detentionof refugees and asylum seekers. See Re-port of the United Nations Working Groupon Arbitrary Detention, U.N. Doc.E/CN.4/2000/4 (Dec. 28, 1999); United Na-tions High Commissioner for Refugees,Guidelines on Applicable Criteria andStandards Relating to the Detention onAsylum–Seekers (Feb. 10, 1999). It is nei-ther arbitrary nor capricious to detain thealiens when necessary to avoid the risk offlight or danger to the community.

Whether a due process right is deniedwhen removable aliens who are flight risksor dangers to the community are detainedturns, then, not on the substantive right tobe free, but on whether there are adequateprocedures to review their cases, allowingpersons once subject to detention to showthat through rehabilitation, new apprecia-tion of their responsibilities, or under oth-er standards, they no longer present spe-cial risks or danger if put at large. TheproceSdures722 to determine and to reviewthe status-required detention go far to-ward this objective.

By regulations, promulgated after noticeand comment, the Attorney General hasgiven structure to the discretion delegatedby the INA in order to ensure fairness andregularity in INS detention decisions.First, the INS provides for an initial po-stcustody review, before the expiration ofthe 90–day removal period, at which adistrict director conducts a record review.8 C.F.R. § 241.4 (2001). The alien is enti-tled to present any relevant information in


support of release, and the district directorhas the discretion to interview the alien fora personal evaluation. § 241.4(h)(1). Atthe end of the 90–day period, the alien, ifheld in custody, is transferred to a pos-torder detention unit at INS headquarters,which in the ordinary course will conductan initial custody review within threemonths of the transfer. § 241.4(k)(2)(ii).If the INS determines the alien shouldremain in detention, a two-member panelof INS officers interviews the alien andmakes a recommendation to INS head-quarters. § 241.4(i)(1)–(3). The regula-tions provide an extensive, nonexhaustivelist of factors that should be considered inthe recommendation to release or furtherdetain. Those include: ‘‘[t]he nature andnumber of disciplinary infractions’’; ‘‘thedetainee’s criminal conduct and criminalconvictions, including consideration of thenature and severity of the alien’s convic-tions, sentences imposed and time actuallyserved, probation and criminal parole his-tory, evidence of recidivism, and othercriminal history’’; ‘‘psychiatric and psycho-logical reports pertaining to the detainee’smental health’’; ‘‘[e]vidence of rehabilita-tion’’; ‘‘[f]avorable factors, including ties tothe United States such as the number ofclose relatives’’; ‘‘[p]rior immigration viola-tions and history’’; ‘‘[t]he likelihood thatthe alien is a significant flight risk or mayabscond to avoid removal, including historyof escapes’’; and any other probative infor-mation. § 241.4(f). Another review mustoccur within one year, with mandatoryevaluations each year thereafter; if thealien reSquests,723 the INS has the discre-tion to grant more frequent reviews.§ 241.4(k)(2)(iii). The INS must providethe alien 30–days advance, written noticeof custody reviews; and it must afford thealien an opportunity to submit any rele-vant materials for consideration.§ 241.4(i)(3)(ii). The alien may be assistedby a representative of his choice duringthe review, § 241.4(i)(3)(i), (ii), and theINS must provide the alien with a copy ofits decision, including a brief statement of

the reasons for any continued detention,§ 241.4(d).

In this context the proper analysis canbe informed by our cases involving parole-eligibility or parole-revocation determina-tions. In Morrissey v. Brewer, 408 U.S.471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),for example, we held some amount of pro-cess was due an individual whose parolewas revoked, for ‘‘the liberty of a parolee,although indeterminate, includes many ofthe core values of unqualified liberty.’’Id., at 482, 92 S.Ct. 2593; see also Boardof Pardons v. Allen, 482 U.S. 369, 107S.Ct. 2415, 96 L.Ed.2d 303 (1987). Werejected in Morrissey the suggestion thatthe State could justify parole revocation‘‘without some informal procedural guaran-tees,’’ 408 U.S., at 483, 92 S.Ct. 2593, but‘‘[g]iven the previous conviction and theproper imposition of conditions,’’ we recog-nized that ‘‘the State has an overwhelminginterest in being able to return the individ-ual to imprisonment without the burden ofa new adversary criminal trial,’’ ibid. Weheld the review process need not include ajudicial officer or formal court proceeding,but could be conducted by a neutral ad-ministrative official. Id., at 486, 92 S.Ct.2593.

While the majority expresses some con-cern that the regulations place the burdenon the alien to show he is no longer dan-gerous, that question could be adjudicatedin a later case raising the issue. It shouldbe noted the procedural protection here isreal, not illusory; and the criteria for ob-taining release are far from insurmounta-ble. Statistics show that between Febru-ary 1999 and mid-November 2000 some6,200 aliens were provided custody reviewsbefore expiration of the 90–day removalperiod, and of those aliens about 3,380S 724were released. 65 Fed.Reg. 80285(2000); Reply Brief for Petitioners in No.00–38, p. 15. As a result, although thealien carries the burden to prove detentionis no longer justified, there is no showingthis is an unreasonable burden.


533 U.S. 725

Like the parolee in Morrissey, who wasaware of the conditions of his release, thealiens in the instant cases have notice,constructive or actual, that the INA impos-es as a consequence of the commission ofcertain crimes not only deportation butalso the possibility of continued detentionin cases where deportation is not immedi-ately feasible. And like the prisoner inBoard of Pardons v. Allen, who soughtfederal-court review of the discretionarydecision denying him parole eligibility, re-movable aliens held pending deportationhave a due process liberty right to havethe INS conduct the review procedures inplace. See 482 U.S., at 381, 107 S.Ct.2415. Were the INS, in an arbitrary orcategorical manner, to deny an alien accessto the administrative processes in place toreview continued detention, habeas juris-diction would lie to redress the due pro-cess violation caused by the denial of themandated procedures under 8 C.F.R.§ 241.4 (2001).

This is not the posture of the instantcases, however. Neither Zadvydas nor Maargues that the Attorney General has ap-plied the procedures in an improper man-ner; they challenge only the AttorneyGeneral’s authority to detain at all whereremoval is no longer foreseeable. TheGovernment has conceded that habeas jur-isdiction is available under 28 U.S.C.§ 2241 to review an alien’s challenge todetention following entry of a final order ofdeportation, Brief for Respondents in No.99–7791, at 9–10, n. 7; Tr. of Oral Arg. 59,although it does not detail what the natureof the habeas review would be. As aresult, we need not decide today whether,and to what extent, a habeas court couldreview the Attorney General’s determina-tion that a detained alien continues to bedangerous or a flight risk. Given the un-deniable deprivation of liberty caused bythe detention, there might be substantialquestions concerning the severity necSes-sary725 for there to be a community risk;the adequacy of judicial review in specificcases where it is alleged there is no justifi-

cation for concluding an alien is dangerousor a flight risk; and other issues. Thesematters are not presented to us here.

In all events, if judicial review is to beavailable, the inquiry required by the ma-jority focuses on the wrong factors. Con-cepts of flight risk or future dangerous-ness are manageable legal categories.See, e.g., Kansas v. Hendricks, 521 U.S.346, 117 S.Ct. 2072, 138 L.Ed.2d 501(1997); Foucha v. Louisiana, 504 U.S. 71,112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).The majority instead would have the Judi-ciary review the status of repatriation ne-gotiations, which, one would have thought,are the paradigmatic examples of nonjusti-ciable inquiry. See INS v. Aguirre–Aguirre, 526 U.S., at 425, 119 S.Ct. 1439.The inquiry would require the ExecutiveBranch to surrender its primacy in foreignaffairs and submit reports to the courtsrespecting its ongoing negotiations in theinternational sphere. High officials of theDepartment of State could be called on totestify as to the status of these negotia-tions. The Court finds this to be a moremanageable, more appropriate role for theJudiciary than to review a single, discretecase deciding whether there were fair pro-cedures and adequate judicial safeguardsto determine whether an alien is danger-ous to the community so that long-termdetention is justified. The Court’s rule isa serious misconception of the proper judi-cial function, and it is not what Congressenacted.

For these reasons, the Court should re-verse the judgment of the Court of Ap-peals for the Ninth Circuit and affirm thejudgment of the Court of Appeals for theFifth Circuit. I dissent.

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533 u.s. 678 zadvydas v. davis 2491 · argued feb. 21, 2001. decided june 28, 2001. resident aliens...

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