US Supreme Court | Mandatory Custody, Detention, No Bail

Court limits deportation for drug crimes-Lopez v. Gonzales (December 05, 2006)

The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime
that is a felony under state law but only a misdemeanor under federal
law is not kind the kind of offense that triggers potential deporation.
Justice David H. Souter wrote the opinion for the Court in Lopez v.
Gonzales (05-547). Justice Clarence Thomas dissented.

The ruling cleared up a conflict among federal appeals courts. Four had
ruled that a felony under state law that is only a misdemeanor under
federal law is not a drug trafficking crime under the Controlled
Substances Act. Two others had disagreed. Federal immigration law
provides for deportation for anyone convicted of a crime that is a
"felony punishable under the Controlled Substances Act." The Court ruled
that "a state offense comes within [that phrase] only if it proscribes
conduct punishable as a felony under" the Controlled Substances Act.

The decision came in the case of Jose Antonio Lopez, a native of Mexico.
He entereed the U.S. illegally in 1985 or 1986, but became a lawful
permanent resident in 1990. In 1997, he was charged in state court in
South Dakota with one count of possessing cocaine and one count of a
conspiracy to distribute the drug. He ultimately pleaded guilty to
aiding and abetting possession by another person.

Under state law, his crime was a felony, leading to a potential prison
sentence of up to five years. He was sentenced to the maximum, but
actually served only 15 months. Federal officials moved to deport him to
Mexico, based upon the conviction for what they considered to be an
"aggravated felony." Under federal law, however, the crime could only be
punished as a misdemeanor.

A conviction for an aggravated felony under immigration law can lead to
deportation, or may bar other relief, such as cancellation of a
deportation order.

Justice Souter's opinion said that under federal law, mere possession is
not a form of "illicit trafficking" in drugs, because that "connotes
some sort of commercial dealing."

The Court had granted review of two cases on the issue, and consolidated
them. In a one-sentence order, the Court on Monday dismissed the second
case, Toledo-Flores v. U.S. (05-7664).

Reinstatement of removal applies to pre-IIRIRA entries| Fernandez-Vargas v. Gonzales (2006)

|126 S.Ct. 2422 (June 22, 2006). 126 S. Ct. 2422, *; 165 L.
Ed. 2d 323, **; 2006 U.S. LEXIS 4892, ***; 74 U.S.L.W. 4416

Immigration law has for some time provided that an order for removing an
alien present unlawfully may be reinstated if he leaves and unlawfully
reenters. The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA)
to enlarge the class of illegal reentrants whose orders may be
reinstated and limit the possible relief from a removal order available
to them. See §241(a)(5), 8 U. S. C. §1235(a)(5). Petitioner
Fernandez-Vargas, a Mexican citizen, illegally reentered the United
States in 1982, after having been deported. He remained undetected for
over 20 years, fathering a son in 1989 and marrying the boy’s mother, a
United States citizen, in 2001. After he filed an application to adjust
his status to that of a lawful permanent resident, the Government began
proceedings to reinstate his 1981 deportation order under §241(a)(5),
and deported him. He petitioned the Tenth Circuit to review the
reinstatement order, claiming that, because he illegally reentered the
county before IIRIRA’s effective date, §241(a)(5) did not bar his
application for adjustment of status, and that §241(a)(5) would be
impermissibly retroactive if it did bar his adjustment application. The
court held that §241(a)(5) barred his application and followed Landgraf
v. USI Film Products, 511 U. S. 244 , in determining that the new law
had no impermissibly retroactive effect in his case.

Held: Section 241(a)(5) applies to those who reentered the United States
before IIRIRA’s effective date and does not retroactively affect any
right of, or impose any burden on, the continuing violator of the INA
now before this Court. Pp. 5–16.

(a) Statutes are disfavored as retroactive when their application “would
impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.” Landgraf, supra, at 280. A statute is
not given retroactive effect “unless such construction is required by
explicit language or by necessary implication.” United States v. St.
Louis, S. F. & T. R. Co., 270 U. S. 1 . In determining whether a statute
has an impermissibly retroactive effect, the Court first looks to
“whether Congress has expressly prescribed the statute’s proper reach,”
Landgraf, supra, at 280, and in the absence of express language tries to
draw a comparably firm conclusion about the temporal reach specifically
intended by applying its “normal rules of construction,” Lindh v.
Murphy, 521 U. S. 320 . If that effort fails, the Court asks whether
applying the statute to the person objecting would have a retroactive
effect in the disfavored sense of “affecting substantive rights,
liabilities, or duties [on the basis of] conduct arising before [its]
enactment,” Landgraf, supra, at 278. If the answer is yes, the Court
then applies the presumption against retroactivity by construing the
statute as inapplicable to the event or act in question. INS v. St. Cyr,
533 U. S. 289 . Pp. 5–7.

(b) Common principles of statutory interpretation fail to unsettle
§241(a)(5)’s apparent application to any reentrant present in the
country, whatever the date of return. The statute does not expressly
include in or exclude from §241(a)(5)’s ambit individuals who illegally
entered the country before IIRIRA’s effective date. Fernandez-Vargas
argues that the fact that the old reinstatement provision applied to
aliens who had “unlawfully reentered … after having previously departed
or been deported … , whether before or after June 27, 1952 [the INA’s
effective date], on any ground described in … subsection (e),” §242(f),
while §241(a)(5) lacks language of temporal reach, shows that Congress
no longer meant to cover preenactment reentrants. But the old
before-or-after clause, which was sandwiched between references to
departure or deportation and grounds for deportation, most naturally
referred not to an alien’s illegal reentry but to the previous
deportation or departure. The better inference is that the clause was
removed because, in 1996, application keyed to departures in 1952 or
earlier was academic. Applying §241(a)(5) only to deportations or
departures after IIRIRA’s effective date would exempt anyone who
departed before that date but reentered after it. That would be a
strange result, since the statute was revised to expand the scope of the
reinstatement authority and invest it with something closer to finality.
Fernandez-Vargas errs in suggesting that the new law is bereft of
clarity and the Court should apply the presumption against retroactivity
as a tool for interpreting the statute at the first Landgraf step. It is
not until a statute is shown to have no firm provision about temporal
reach but to produce a retroactive effect when straightforwardly applied
that the presumption has its work to do. And IIRIRA has other provisions
on temporal reach, which blunt Fernandez-Vargas’s argument that a
negative inference in his favor may be drawn from removal of the
before-or-after clause. Pp. 7–10.

(c) This facial reading is confirmed by two features of IIRIRA. First,
the provision’s text shows that it applies here not because
Fernandez-Vargas reentered at any particular time, but because he chose
to remain after the new statute became effective. While the law looks
back to “an alien [who] has reentered … illegally,” 8 U. S. C.
§1231(a)(5), the provision does not penalize an alien for the reentry;
it establishes a process to remove him under a “prior order any time
after the reentry,” ibid. Thus, it is the conduct of remaining in the
country after entry that is the predicate action; the law applies to
stop an indefinitely continuing violation that the alien could end at
any time by voluntarily leaving. It is therefore the alien’s choice to
continue his illegal presence, after illegal reentry and after the new
law’s effective date, that subjects him to the new and less generous
regime, not a past act that is he helpless to undo. INS v. St. Cyr,
supra, distinguished. Second, IIRIRA’s effective date provision shows
that Fernandez-Vargas had ample warning of the coming change in the law,
but chose to remain until the old regime expired and §241(a)(5) took its
place. He had an opportunity to avoid the new law’s application by
leaving the country and ending his violation during the 6 months between
IIRIRA’s enactment and effective date. For that matter, he could have
married his son’s mother and applied for adjustment of status during the
period, in which case he would at least have had a claim that proven
reliance on the law should be honored by applying the presumption
against retroactivity. Instead, he augmented his 15 years of unlawful
presence by remaining in the country into the future subject to the new
law. And the presumption against retroactivity does not amount to a
presumption of legal stasis for the benefit of continuous lawbreakers.
Pp. 11–15.

394 F. 3d 881, affirmed.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined.
Stevens, J., filed a dissenting opinion.

INA Does Not Authorize Indefinite Detention of Inadmissible Immigrants (2/10/05)

Clark v. Martinez U.S. 371, *; 125 S. Ct. 716, **; 160 L. Ed. 2d 734, ***; 2005 U.S. LEXIS 627

The U.S. Supreme Court has ruled that the Immigration and Nationality
Act does not authorize the continued detention, beyond the period of
time in which it is reasonably necessary to achieve their removal, of
non–U.S. citizens who have been found inadmissible and ordered removed.
The ruling in this case, Clark v. Martinez, applies the same
interpretation of INA section 241(a)(6) that the Court used in Zadvydas
v. Davis, 533 U.S. 678 (2001), which concerned the indefinite detention
of lawful permanent residents under final deportation orders. Without
contesting that inadmissible noncitizens generally may have lesser
rights than individuals who have been admitted and granted lawful
permanent residence, the Court rejected the contention that this
difference should justify giving a different interpretation of the same
statutory language concerning the authority for detention beyond the
removal period.

If an alien is found inadmissible and ordered removed, the Secretary of
Homeland Security (Secretary) ordinarily must remove the alien from the
country within 90 days. 8 U.S.C. § 1231(a)(1)(A). Here, Martinez,
respondent in No. 03—878, and Benitez, petitioner in No. 03—7434, Cuban
nationals who are both inadmissible under §1182, were ordered removed,
but were detained beyond the 90-day removal period. Each filed a habeas
corpus petition challenging his continued detention. In Martinez’s case,
the District Court found that removal was not reasonably foreseeable and
ordered that Martinez be released under appropriate conditions. The
Ninth Circuit affirmed. In Benitez’s case, the District Court also
accepted that removal would not occur in the foreseeable future, but
nonetheless denied the petition. The Eleventh Circuit affirmed.

Held:

1. Under §1231(a)(6), the Secretary may detain inadmissible aliens
beyond the 90-day removal period, but only for so long as is reasonably
necessary to achieve removal. Section 1231(a)(6)’s operative language,
“may be detained beyond the removal period,” applies equally to all
aliens that are its subject, whether or not those aliens have been
admitted to the country. In Zadvydas v. Davis, 533 U.S. 678, this Court
interpreted §1231(a)(6) to authorize the detention of aliens who have
been admitted to the country only as long as “reasonably necessary” to
effectuate their removal. Id., at 689, 699. This interpretation must
apply to inadmissible aliens as well. Even if the statutory purpose and
constitutional concerns influencing the Zadvydas construction are not
present for inadmissible aliens, that cannot justify giving the same
statutory text a different meaning depending on the characteristics of
the aliens involved. Crowell v. Benson, 285 U.S. 22, Raygor v. Regents
of Univ. of Minn., 534 U.S. 533, and Jinks v. Richland County, 538 U.S.
456, distinguished. Moreover, contrary to the Government’s argument,
nothing in Zadvydas indicates that §1231(a)(6) authorizes detention
until it approaches constitutional limits. Nor does §1182(d)(5)
independently authorize continued detention of these aliens. Pp. 5—14.

2. In Zadvydas, the Court further held that the presumptive period
during which an alien’s detention is reasonably necessary to effectuate
removal is six months, and that he must be conditionally released after
that time if he can demonstrate that there is “no significant likelihood
of removal in the reasonably foreseeable future.” 533 U.S., at 701. The
Government having suggested no reason that the time reasonably necessary
for removal is longer for an inadmissible alien, this same 6-month
presumptive detention period applies in these cases. Because both
Martinez and Benitez were detained well beyond six months after their
removal orders became final, the Government has brought forward nothing
to indicate that a substantial likelihood of removal subsists, and the
District Court in each case has determined that removal to Cuba is not
reasonably foreseeable, the habeas petitions should have been granted.
Pp. 14—15.

No. 03—878, affirmed; No. 03—7434, 337 F.3d 1289, reversed; and both
cases remanded.

Scalia, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor,
J., filed a concurring opinion. Thomas, J., filed a dissenting opinion,
in which Rehnquist, C. J., joined as to Part I—A.

DHS may remove noncitizen to a country that has not consented to the
removal | Jama v. Immigration and Customs Enforcement (Decided January
12, 2005)

543 U.S. 335, *; 125 S. Ct. 694, **; 160 L. Ed. 2d 708, ***; 2005 U.S.
LEXIS 626

In a 5-4 decision, the U.S. Supreme Court has ruled that the Immigration
and Nationality Act does not require the Dept. of Homeland Security
(DHS), before it carries out an order that a non–U.S. citizen be removed
to his or her country of nationality, to first obtain the consent of
that country’s government. The ruling permits the removal of a Somali
national to his country despite his contention that the removal would be
illegal, since Somalia has no functioning government that could consent
to his being removed to Somalia. The decision affirms a ruling of the
Eighth Circuit Court of Appeals and effectively overrules a nationwide
injunction against removals to Somalia that was issued by the Ninth
Circuit Court of Appeals (for background, see “9th Circuit Upholds
Nationwide Injunction of Removals to Somalia,” Immigrants’ Rights
Update, Oct. 21, 2003, p. 6).

The Court’s ruling is based on the language of INA section 241(b)(2),
which specifies the procedure to be followed in selecting the country to
which a noncitizen will be removed. This statute provides noncitizens
the right to designate the country to which they will be removed, but it
also provides guidelines for the DHS to follow in selecting an
alternative “country of removal” if a noncitizen declines to choose one
or if it is impossible to remove the person to the country he or she has
designated. While in some of the alternatives provided for in the
guidelines the statute explicitly requires that the country of removal
be one where the government will permit the removal, the provision
authorizing removal to the country where the subject of a removal order
was born does not contain this requirement.

Noting that “[w]e do not lightly assume that Congress has omitted from
its adopted text requirements that it nonetheless intends to apply, and
our reluctance is even greater when Congress has shown elsewhere in the
same statute that it knows how to make such a requirement manifest,”
Justice Scalia, writing for the majority, concluded that the statute
does not require that the Somali government consent to the removal to
Somalia of the petitioner in this case. The Court did note that the
statute provides that in cases where removal to a particular country is
“impractical, inadvisable, or impossible,” other countries may be
considered as possible destinations, and “[n]onacceptance [of the person
to be removed] may surely be one of the factors considered in
determining whether removal to a given country is impracticable or
inadvisable.” However, the Court concluded that in such a case the
statute does not preclude removal to the nonaccepting country.

Justice Souter dissented, joined by Justices Stevens, Ginsburg, and
Breyer, contending that the majority’s interpretation of the statute “is
at war with the text, structure, history, and legislative history of the
statute.”

Held: Section 1231(b)(2)(E)(iv) permits an alien to be removed to a
country without the advance consent of that country’s government. Pp.
2—17.

(a) Section 1231(b)(2) provides four consecutive removal commands: (1)
An alien shall be removed to the country of his choice (subparagraphs
(A) to (C)), unless a condition eliminating that command is satisfied;
(2) otherwise he shall be removed to the country of which he is a
citizen (subparagraph (D)), unless a condition eliminating that command
is satisfied; (3) otherwise he shall be removed to a country with which
he has a lesser connection (subparagraph (E), clauses (i) to (vi),
including the country of his birth (clause iv)); or (4) if that is
“impracticable, inadvisable or impossible,” he shall be removed to
another country whose government will accept him (subparagraph (E),
clause (vii)). Here, the question is whether the Attorney General was
precluded from removing petitioner to Somalia under subparagraph (E),
clause (iv), because Somalia had not consented. Pp. 2—6.

(b) In all of subparagraph (E), an acceptance requirement appears only
in clause (vii), the fourth step of the process, which the Attorney
General may invoke only after finding the third step “impracticable,
inadvisable, or impossible.” Clauses (i) through (vi) contain not a word
about acceptance by the destination country. Including the word
“another” in clause (vii) does not import the acceptance requirement
into clauses (i)—(vi). Such a reading stretches the modifier too far,
contrary to “the grammatical ‘rule of the last antecedent,’ ” Barnhart
v. Thomas, 540 U.S. 20, 26. Subparagraph (E)’s structure does not refute
the inference derived from the last-antecedent rule. Pp. 6—9.

(c) Nor is an acceptance requirement manifest in §1231(b)(2)’s
structure. First, the overlap between subparagraphs (D) and (E) is not
so complete as to justify imposing an acceptance requirement at the
third step in the name of preventing the Attorney General from
“circumventing” the second step. Second, the statute expressly
countenances removal to a country notwithstanding its objections.
Subparagraph (C) provides that at the first step of the
country-selection process, the Attorney General “may” refrain from
removing an alien to the country of his choice if that country does not
accept the alien; the Attorney General thus has discretion to override
any lack of acceptance. Finally, the existence of an acceptance
requirement at the fourth step does not imply that such a requirement
must exist at the third. To infer an absolute rule of acceptance where
Congress has not clearly set it forth would run counter to this Court’s
customary policy of deference to the President in foreign affairs, and
would not be necessary to ensure appropriate consideration to conditions
in the country of removal, since aliens facing persecution or other
mistreatment have a number of available remedies. Pp. 10—13.

(d) Contrary to petitioner’s argument, the acceptance requirement is
“neither settled judicial construction nor one which [the Court] would
be justified in presuming Congress, by its silence, impliedly approved,”
United States v. Powell, 379 U.S. 48, 55, n. 13, in its most recent
reenactment of §1231(b)(2). Pp. 13—16.

DUI IS NOT A CRIME OF VIOLENCE

A drunk driving accident is not a "crime of violence" allowing the
government to deport a permanent resident, the Supreme Court ruled in
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

Alien's state DUI conviction was not a crime of violence for purposes of
the deportation statute as the phrase "use of physical force against the
person or property of another" required a higher mens rea than negligent
or accidental conduct.

The court ruled unanimously in favor of Josue Leocal, a Florida man
challenging his deportation to Haiti in 2002 after pleading guilty to a
felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a
"crime of violence" under the immigration statute because he had caused
injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute
suggests that the felony offense must require intent in causing harm -
not mere negligence as in Leocal's case - before immigrants are subject
to the drastic consequence of deportation.

REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded
guilty to two counts of driving under the influence of alcohol (DUI) and
causing serious bodily injury in an accident, in violation of Florida
law. While he was serving his prison sentence, the Immigration and
Naturalization Service (INS) initiated removal proceedings pursuant to §
237(a) of the Immigration and Nationality Act (INA), which permits
deportation of an alien convicted of "an aggravated felony." INA §
101(a)(43)(F) defines "aggravated felony" to include, inter alia, "a
crime of violence [as defined in 18 U.S.C. § 16] for which the term of
imprisonment [is] at least one year." Title 18 U.S.C. § 16(a), in turn,
defines "crime of violence" as "an offense that has as an element the
use . . . of physical force against the person or property of another,"
and § 16(b) defines it as "any other offense that is a felony and that,
by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of
committing the offense." An Immigration Judge and the Board of
Immigration Appeals (BIA) ordered petitioner's deportation, and the
Eleventh Circuit dismissed his petition for review, relying on its
precedent that a conviction under Florida's DUI statute is a crime of
violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida's, which either do not have a
mens rea component or require only a showing of negligence in the
operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16.
Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of
the offense of conviction in determining whether petitioner's conviction
falls within its ambit. Florida's DUI statute, like similar statutes in
many States, requires proof of causation but not of any mental state;
and some other States appear to require only proof that a person acted
negligently in operating the vehicle. This Court's analysis begins with
§ 16's language. See Bailey v. United States, 516 U.S. 137, 144, 133 L.
Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute
featuring as elastic a word as "use," the Court construes language in
its context and in light of the terms surrounding it. See Smith v.
United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050.
Section 16(a)'s critical aspect is that a crime of violence involves the
"use . . . of physical force against" another's person or property. That
requires active employment. See Bailey, supra, 516 U.S. 137, at 145,
1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively
employ something in an accidental manner, it is much less natural to say
that a person actively employs physical force against another by
accident. When interpreting a statute, words must be given their
"ordinary or natural" meaning, Smith, supra, 508 U.S. 223 at 228, 124 L.
Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)'s key phrase most naturally
suggests a higher degree of intent than negligent or merely accidental
conduct. Petitioner's DUI offense therefore is not a crime of violence
under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more
broadly than § 16(a), but does not thereby encompass all negligent
conduct, such as negligent operation of a vehicle. It simply covers
offenses that naturally involve a person acting in disregard of the risk
that physical force might be used against another in committing an
offense. The classic example is burglary, which, by nature, involves a
substantial risk that the burglar will use force against a victim in
completing the crime. Thus, § 16(b) contains the same formulation found
to be determinative in § 16(a): the use of physical force against
another's person or property. Accordingly, § 16(b)'s language must be
given an identical construction, requiring a higher mens rea than the
merely accidental or negligent conduct involved in a DUI offense. Pp.
8-9.

(c) The ordinary meaning of the term "crime of violence," which is what
this Court is ultimately determining, combined with § 16's emphasis on
the use of physical force against another (or the risk of having to use
such force in committing a crime), suggests a category of violent,
active crimes that cannot be said naturally to include DUI offenses.
This construction is reinforced by INA § 101(h), which includes as
alternative definitions of "serious criminal offense" a "crime of
violence, as defined in [§ 16]," § 101(h)(2), and a DUI-causing-injury
offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would
leave § 101(h)(3) practically void of significance, in contravention of
the rule that effect should be given to every word of a statute whenever
possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251,
121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring
proof of the reckless use of force against another's person or property
qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded.

Mandatory Detention | Custody & Bond: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1)

The US Supreme Court declared that lawful permanent residents with
certain criminal convictions can be detained pursuant to INA §236(c)
without an individual bond hearing. The Court, however, also held that
§ 236(e) does not preclude habeas review of challenges to detention under
§ 236(c).

The Supreme Court decision in Demore v. Kim applied only to individuals
who conceded deportability and explicitly did not address the adequacy of
the Matter of Joseph hearing, which allows a person to be released if
she or he can demonstrate that the government is substantially unlikely
to prevail on the charges of removal. To the extent possible,
non-citizens should not concede deportability and request a Matter of
Joseph hearing.

The Immigration Judge may make a determination on whether a lawful
permanent resident “is not properly included” in a mandatory detention
category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or
after the conclusion of the underlying removal case. If this threshold
bond decision is made after the Immigration Judge’s resolution of the
removal case, the Immigration Judge may rely on that underlying merits
determination.

Demore v. Kim, 538 U.S. __ , No. 01-1491, 4/29/03
SUPREME COURT OF THE UNITED STATES

PDF Case

Under the Immigration and Nationality Act, 8 U.S.C. § 1226(c), "the
Attorney General shall take into custody any alien who" is removable
from this country because he has been convicted of one of a specified
set of crimes, including an "aggravated felony." After respondent, a
lawful permanent resident alien, was convicted in state court of
first--degree burglary and, later, of "petty theft with priors," the
Immigration and Naturalization Service (INS) charged him with being
deportable from the United States in light of these convictions, and
detained him pending his removal hearing. Without disputing the validity
of his convictions or the INS' conclusion that he is deportable and
therefore subject to mandatory detention under § 1226(c), respondent
filed a habeas corpus action challenging § 1226(c) on the ground that
his detention thereunder violated due process because the INS had made
no determination that he posed either a danger to society or a flight
risk. The District Court agreed and granted respondent's petition
subject to the INS' prompt undertaking of an individualized bond
hearing, after which respondent was released on bond. In affirming, the
Ninth Circuit held that § 1226(c) violates substantive due process as
applied to respondent because he is a lawful permanent resident, the
most favored category of aliens. The court rejected the Government's two
principal justifications for mandatory detention under § 1226(c),
discounting the first ---- ensuring the presence of criminal aliens at
their removal proceedings ---- upon finding that not all aliens detained
pursuant to § 1226(c) would ultimately be deported, and discounting the
second ---- protecting the public from dangerous criminal aliens ---- on
the grounds that the aggravated felony classification triggering
respondent's detention included crimes (such as respondent's) that the
court did not consider "egregious" or otherwise sufficiently dangerous
to the public to necessitate mandatory detention. Relying on Zadvydas v.
Davis, 533 U.S. 678, the court concluded that the INS had not provided a
justification for no--bail civil detention sufficient to overcome a
permanent resident alien's liberty interest.

1. Section 1226(e) ---- which states that "the Attorney General's
discretionary judgment regarding the application of this section shall
not be subject to review" and that "no court may set aside any action or
decision by the Attorney General under this section regarding the
detention or release of any alien" ---- does not deprive the federal
courts of jurisdiction to grant habeas relief to aliens challenging
their detention under § 1226(c). Respondent does not challenge a
" discretionary judgment" by the Attorney General or a "decision" that
the Attorney General has made regarding his detention or release.
Rather, respondent challenges the statutory framework that permits his
detention without bail. Where Congress intends to preclude judicial
review of constitutional claims its intent to do so must be clear. E.g.,
Webster v. Doe, 486 U.S. 592, 603. And, where a provision precluding
review is claimed to bar habeas review, the Court requires a
particularly clear statement that such is Congress' intent. See INS v.
St. Cyr, 533 U.S. 289, 308--309, 298, 327. Section 1226(e) contains no
explicit provision barring habeas review. Pp. 4--6.

2. Congress, justifiably concerned with evidence that deportable
criminal aliens who are not detained continue to engage in crime and
fail to appear for their removal hearings in large numbers, may require
that persons such as respondent be detained for the brief period
necessary for their removal proceedings. In the exercise of its broad
power over naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens. Mathews v.
Diaz, 426 U.S. 67, 79--80. Although the Fifth Amendment entitles aliens
to due process in deportation proceedings, Reno v. Flores, 07 U.S. 292,
306, detention during such proceedings is a constitutionally valid
aspect of the process, e.g., Wong Wing v. United States, 163 U.S. 228,
235, even where, as here, aliens challenge their detention on the
grounds that there has been no finding that they are unlikely to appear
for their deportation proceedings, Carlson v. Landon, 342 U.S. 524, 538.
The INS detention of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal proceedings, is
governed by these cases. Respondent argues unpersuasively that the §
1226(c) detention policy violates due process under Zadvydas, 533 U.S.,
at 699, in which the Court held that § 1231(a)(b) authorizes continued
detention of an alien subject to a final removal order beyond that
section's 90--day removal period for only such time as is reasonably
necessary to secure the removal. Zadvydas is materially different from
the present case in two respects. First, the aliens there challenging
their detention following final deportation orders were ones for whom
removal was "no longer practically attainable," such that their
detention did not serve its purported immigration purpose. Id., at 690.
In contrast, because the statutory provision at issue in this case
governs detention of deportable criminal aliens pending their removal
proceedings, the detention necessarily serves the purpose of preventing
the aliens from fleeing prior to or during such proceedings. Second,
while the period of detention at issue in Zadvydas was "indefinite" and
" potentially permanent," id., at 690--691, the record shows that 1226(c)
detention not only has a definite termination point, but lasts, in the
majority of cases, for less than the 90 days the Court considered
presumptively valid in Zadvydas. Pp. 6--20. 276 F.3d 523, reversed.

JUDGES: REHNQUIST, C. J., delivered the opinion of the Court, in which KENNEDY, J., joined in full, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined as to Part I, and in which O'CONNOR, SCALIA, and
THOMAS, JJ., joined as to all but Part I. KENNEDY, J., filed a concurring opinion. O'CONNOR, J., filed an opinion
concurring in part and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined. SOUTER, J., filed an
opinion concurring in part and dissenting in part, in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed an
opinion concurring in part and dissenting in part.

Supreme Court Declares Indefinite Detention of Aliens Ordered Deported Unconstitutional & Allows Criminal Aliens to Apply for Waivers

ZADVYDAS v. DAVIS et al. Together with No. 00—38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States Court of Appeals for the Ninth Circuit. (06/28/01)

The central issue in both cases, which the Court consolidated for review, is the government's power to detain a deportable alien. The statute before the court requires a 90-day period of confinement for immigrants subject to a "final removal order," after which the government "may" continue the detention.

After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release, subject to administrative review.

The 5-to-4 decision rejected the government's view, as argued by both the Clinton and Bush administrations, that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.

Justice Stephen G. Breyer's majority opinion said that because interpreting the law in that way would present a "serious constitutional threat" under the Fifth Amendment's guarantee of due process, the court would construe the law to permit only "reasonable" detention. Justice Breyer said that after six months of detention, if deportation did not seem likely in the "reasonably foreseeable future," the government would have to come up with special reasons for keeping someone in custody.

Held:
1. Section 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to post-removal-period detention. Statutory changes in the immigration law left habeas untouched as the basic method for obtaining review of continued custody after a deportation order becomes final, and none of the statutory provisions limiting judicial review of removal decisions applies here. Pp. 6—8.

2. The post-removal-period detention statute, read in light of the Constitution’s demands, implicitly limits an alien’s detention to a period reasonably necessary to bring about that alien’s removal from the United States, and does not permit indefinite detention. Pp. 8—19.

(a) A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual’s liberty interest. The instant proceedings are civil and assumed to be non punitive, and the Government proffers no sufficiently strong justification for indefinite civil detention under this statute. The first justification–preventing flight–is weak or nonexistent where removal seems a remote possibility. Preventive detention based on the second justification–protecting the community–has been upheld only when limited to specially dangerous individuals and subject to strong procedural protections. When preventive detention is potentially indefinite, this dangerousness rationale must also be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. The civil confinement here is potentially permanent, and once the flight risk justification evaporates, the only special circumstance is the alien’s removable status, which bears no relation to dangerousness. Moreover, the sole procedural protections here are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (according to the Government) significant later judicial review. The Constitution may well preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. Pp. 8—12.

(b) Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which an alien was indefinitely detained as he attempted to reenter the country–does not support the Government’s argument that alien status itself can justify indefinite detention. Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. Nor do cases holding that, because Congress has plenary power to create immigration law, the Judicial Branch must defer to Executive and Legislative Branch decision making in that area help the Government, because that power is subject to constitutional limits. Finally, the aliens’ liberty interest is not diminished by their lack of a legal right to live at large, for the choice at issue here is between imprisonment and supervision under release conditions that may not be violated and their liberty interest is strong enough to raise a serious constitutional problem with indefinite detention. Pp. 12—16.

(c) Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect. But this Court finds no clear indication of such intent. The statute’s use of “may” is ambiguous and does not necessarily suggest unlimited discretion. Similar related statutes requiring detention of criminal aliens during removal proceedings and the removal period do not show that Congress authorized indefinite detention here. Finally, nothing in the statute’s legislative history clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Pp. 16—19.

3. The application of the “reasonable time” limitation is subject to federal-court review. The basic federal habeas statute grants the federal courts authority to determine whether post-removal-period detention is pursuant to statutory authority. In answering that question, the court must ask whether the detention exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute’s purpose of assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized. If it is foreseeable, the court should consider the risk of the alien’s committing further crimes as a factor potentially justifying continued confinement. Without abdicating their responsibility to review the detention’s lawfulness, the courts can take appropriate account of such matters as the Executive Branch’s greater immigration-related expertise, the Immigration and Naturalization Service’s administrative needs and concerns, and the Nation’s need to speak with one voice on immigration. In order to limit the occasions when courts will need to make the difficult judgments called for by the recognition of this necessary Executive leeway, it is practically necessary to recognize a presumptively reasonable period of detention. It is unlikely that Congress believed that all reasonably foreseeable removals could be accomplished in 90 days, but there is reason to believe that it doubted the constitutionality of more than six months’ detention. Thus, for the sake of uniform administration in the federal courts, six months is the appropriate period. After the 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence sufficient to rebut that showing. Pp. 19—22.

Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which Scalia and Thomas, JJ., joined as to Part I.
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INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers (1) Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

Before the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 212(c) of the Immigration and Nationality Act of 1952 was interpreted to give the Attorney General broad discretion to waive deportation of resident aliens. As relevant here, the large class of aliens depending on 212(c) relief was reduced in 1996 by 401 of AEDPA, which identified a broad set of offenses for which convictions would preclude such relief; and by IIRIRA, which repealed 212(c) and replaced it with a new section excluding from the class anyone convicted of an aggravated felony, 8 U.S.C. 1229b(a)(3). Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. He would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but his removal proceedings were commenced after AEDPAs and IIRIRAs effective dates. The Attorney General claims that those Acts withdrew his authority to grant St. Cyr a waiver. The Federal District Court accepted St. Cyrs habeas corpus application and agreed that the new restrictions do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed.

Held:

1. Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition.

a) To prevail on its claim that AEDPA and IIRIRA stripped federal courts of jurisdiction to decide a pure question of law, as in this case, petitioner Immigration and Naturalization Service (INS) must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction. Here, that plain statement rule draws additional reinforcement from other canons of statutory construction: First, when a statutory interpretation invokes the outer limits of Congress power, there must be a clear indication that Congress intended that result; and second, if an otherwise acceptable construction would raise serious constitutional problems and an alternative interpretation is fairly possible, the statute must be construed to avoid such problems.

b) Construing the amendments at issue to preclude court review of a pure question of law would give rise to substantial constitutional questions. The Constitutions Suspension Clause, which protects the privilege of the habeas corpus writ, unquestionably requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U.S. 229, 235. Even assuming that the Clause protects only the writ as it existed in 1789, substantial evidence supports St. Cyrs claim that pure questions of law could have been answered in 1789 by a common-law judge with power to issue the writ. Thus, a serious Suspension Clause issue would arise if the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute. The need to resolve such a serious and difficult constitutional question and the desirability of avoiding that necessity reinforce the reasons for requiring a clear and unambiguous statement of constitutional intent. Pp. 914.

(c) To conclude that the writ is no longer available in this context would also represent a marked departure from historical immigration law practice. The writ has always been available to review the legality of executive detention, see e.g., Felker v. Turpin, 518 U.S. 651, 663, and, until the 1952 Act, a habeas action was the sole means of challenging a deportation orders legality, see, e.g., Heikkila, 345 U.S., at 235. Habeas courts have answered questions of law in alien suits challenging Executive interpretations of immigration law and questions of law that arose in the discretionary relief context. Pp. 1417.

(d) Neither AEDPA 401(e) nor three IIRIRA provisions, 8 U.S.C. 1252(a)(1), (a)(2)(C), and (b)(9), express a clear and unambiguous statement of Congress intent to bar 28 U.S.C. 2241 petitions. None of these sections even mentions 2241. Section 401(e)s repeal of a subsection of the 1961 Act, which provided, inter alia, habeas relief for an alien in custody pursuant to a deportation order, is not sufficient to eliminate what the repealed section did not grantnamely, habeas jurisdiction pursuant to 2241. See Ex parte Yerger, 8 Wall. 85, 105106. The three IIRIRA provisions do not speak with sufficient clarity to bar habeas jurisdiction. They focus on judicial review or jurisdiction to review. In the immigration context, however, judicial review and habeas corpus have historically distinct meanings, with habeas courts playing a far narrower role. Pp. 1724.

2. Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Pp. 2436.

(a) A statutes language must require that it be applied retroactively. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208. The first step in the impermissible-retroactive-effect determination is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Martin v. Hadix, 527 U.S. 343, 352. Such clarity is not shown by the comprehensiveness of IIRIRAs revision of federal immigration law, see Landgraf v. USI Film Products, 511 U.S. 244, 260261, by the promulgation of IIRIRAs effective date, see id., at 257, or by IIRIRA 309(c)(1)s saving provision. Pp. 2430.

(b) The second step is to determine whether IIRIRA attaches new legal consequences to events completed before its enactment, a judgment informed and guided by considerations of fair notice, reasonable reliance, and settled expectations. Landgraf, 511 U. S., at 270. IIRIRAs elimination of 212(c) relief for people who entered into plea agreements expecting that they would be eligible for such relief clearly attaches a new disability to past transactions or considerations. Plea agreements involve a quid pro quo between a criminal defendant and the government, and there is little doubt that alien defendants considering whether to enter into such agreements are acutely aware of their convictions immigration consequences. The potential for unfairness to people like St. Cyr is significant and manifest. Now that prosecutors have received the benefit of plea agreements, facilitated by the aliens belief in their continued eligibility for 212(c) relief, it would be contrary to considerations of fair notice, reasonable reliance, and settled expectations to hold that IIRIRA deprives them of any possibility of such relief. The INS argument that application of deportation law can never have retroactive effect because deportation proceedings are inherently prospective is not particularly helpful in undertaking Landgrafs analysis, and the fact that deportation is not punishment for past crimes does not mean that the Court cannot consider an aliens reasonable reliance on the continued availability of discretionary relief from deportation when deciding the retroactive effect of eliminating such relief. That 212(c) relief is discretionary does not affect the propriety of this Courts conclusion, for there is a clear difference between facing possible deportation and facing certain deportation. Pp. 3036. 229 F.3d 406, affirmed.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. OConnor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C.J., and Thomas, J., joined, and in which OConnor, J., joined, as to Parts I and III.

FALLS CHURCH, Va, August 13, 2002

Proposed Rule Published to Implement Supreme Court's St. Cyr Decision.
St. Cyr Rule Rule Implements Procedures for Certain Criminal Aliens
Seeking Section 212(c) Relief from Deportation or Removal.

(Printable pdf version)

The Executive Office for Immigration Review published a proposed rule in
the Federal Register establishing procedures for eligible lawful
permanent residents (LPRs) with certain criminal convictions, prior to
April 1, 1997, to apply for relief from deportation or removal under
former section 212(c) of the Immigration and Nationality Act. This
relief is available to eligible individuals who are currently in
immigration proceedings, who may be placed in removal proceedings, or
who have completed immigration proceedings and are under final orders of
deportation or removal. It does not apply to those who have already been
deported from the United States. This proposed rule implements the U.S.
Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001). It
sets forth procedures for certain lawful permanent residents to apply
for discretionary relief from deportation or removal under former
section 212(c) of the Immigration and Nationality Act (INA)

Until 1996, under section 212(c) certain LPRs, who resided in the United
States for at least seven years and had committed a crime, could seek
relief to avoid deportation on criminal grounds. In considering a grant
of relief under section 212(c), an Immigration Judge would weigh
negative factors, such as the severity of the crime, against positive
factors, such as the individual's rehabilitation and ties to the
community.

Congress sharply curtailed section 212(c) relief through provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and
then eliminated this relief in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).

On June 25, 2001, the Supreme Court decided in INS v. St. Cyr that LPRs
– whose criminal convictions were obtained through plea agreements prior
to April 1, 1997 – would be eligible for section 212(c) relief if they
would have been eligible for this relief at the time they were convicted
by plea agreement. The decision provides the broadest form of section
212(c) relief to those with criminal convictions prior to April 24, 1996
(the effective date of the AEDPA legislation). More limited section
212(c) relief is available to those with criminal convictions entered
after April 24, 1996, and March 31, 1997 (the period immediately
preceding the effective date of the IIRIRA legislation).

The St. Cyr decision affects thousands of pending cases in federal and
Immigration Courts, as well as a potentially large number of individuals
who have not yet come before an Immigration Court. This proposed rule
establishes a fair and efficient process to restore section 212(c)
relief to those who are eligible. It is important to note that eligible
individuals under final orders of deportation or removal who are still
in the United States must apply for this relief within 180 days after
the publication of the final rule.

The proposed rule is available on the Internet at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&
docid=02-20403-filed.pdf.

The Seventh Circuit has developed an approach that is in accord with the decisions of the First and Ninth Circuits. It has announced a general rule that AEDPA Sec. 440(d)'s bar on INA Sec. 212(c)'s discretionary relief applies retroactively to pre-enactment guilty pleas. See LaGuerre, 164 F.3d at 1041; Turkhan, 188 F.3d at 827. It has also, however, identified a particular set of circumstances where applying AEDPA Sec. 440(d) to past conduct would have an impermissible retroactive effect. Under the law of the Seventh Circuit, AEDPA Sec. 440(d) applies retrospectively unless an alien actually had conceded deportability, despite a colorable defense, in reliance upon receiving a Sec. 212(c) waiver. See Turkhan Morales-Ramirez v. Reno.

Jideonwo v. Immigration and Naturalization Service, No. 99-3243 (8/23/00). Pet. for Rev.,Order of Bd. of Immigration Appeals. Rev'd and rem'd. Where, as here, specific facts demonstrated that alien pleaded guilty to aggravated felony before enactment of AEDPA and relied at least in part on availability of deportation waiver under Sec. 212(c) of INA, 8 USC Sec. 1182(c) when making plea, AEDPA's sec. 440(d), which made aliens who committed aggravated felonies ineligible for discretionary deportation waivers, could not be applied retroactively to bar alien from applying for a discretionary waiver.