Detention Pending Removal  INA §§ 235(b), 236, 236A, 241

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Detention Pending Removal INA §§ 235(b), 236, 236A, 241


Pros: (1) admissibility is in doubt; (2) risk of flight; (3) ensure departure; (4) protecting the public

Cons: (1) cost; (2) restraint on personal liberty

Detention Scheme

Exceptions witness protection/cooperation, individual is not flight risk.

241(a)(1): 90 day rule period during which DHS has to remove after order

241(a)(3): after 90 days: discretion to release can’t release if removable on terrorists and certain criminal grounds; after 90 day period is over there’s a wider form of discretion

241(a)(6): ‘may be detained’ beyond removal period if alien was ordered removed on grounds of inadmissibility or nonimmigrant status; if released may be subject to conditions.

Zadvydas v. Davis: Two issues: (1) constitution; (2) statute

Facts: Circuit split between 5th and 9th Cir.

Zad born Lithuanian in German refugee camp. Came to US @ 8, criminal record/history of flight. INS tries deportation to Germany which refuses (not a cit). Lithuania refuses (not a cit). DR (wife’s country) does too.

90-day statutory removal period ends, AG can keep holding per 241(a)(6); Z files for habeas.  No reasonable possibility of removal, confinement is indefinite.

5th Cir.: detention is not a DP violation because removal is not impossible

Ma born in Cambodia, fled, arrived in US @ 7. Convicted of manslaughter, ordered deported (no waiver avail b/c he committed aggravated felony). Cambodia won’t take him due to lack of repatriation agreement.

M argues INS can’t prove he won’t remain nonviolent, so he must be released

9th Cir.: INA doesn’t require detention post 90 days. No reasonable expectation of removal. Release.

Holding: § 241(a)(6), read in light of Constitution, limits alien’s post-removal-period detention to period reasonably necessary to effectuate removal-does not authorize indefinite detention.

Remand: Habeas ct must ask whether detention exceeds period reasonably necessary to secure removal.  Up to 6 months presumptively valid; after that burden on gov to show removal could occur.

Applicability of DP:

Mezei upheld indefinite detention b/c national security would have made it inappropriate to parole Mezei.

Plasencia: Once aliens are allowed into country they acquire DP rights.

Indefinite detention raises constitutional issues freedom from detention is core of DP rights.

Salerno: in criminal proceeding, justified post procedural safeguards; not crim here.

Detention is permissible in civil proceedings w/special non-punitive circumstances and justification (Kendrick)

Choice is not btwn imprisonment and alien at large but btwn imprisonment and supervised release

Gov’s Justifications:

flight risk: beside the point since he can’t be removed.

protecting community: preventive detention can only be upheld after individualized finding, + primary interest is removal.

Statutory interpretation/avoidance: Congressional intent unclear. Court says, statute applies to others (visa violators); Cong couldn’t’ve intended them to be locked up indefinitely.  Cong must auth indef detention explicitly.

Dissent (Scalia/Thomas): Mezei was about procedure which turns on LPR v. admission-seeker; this is about substance.  Z & M have no right to be here, so they’re = to aliens seeking admission (both fall under § 241(a)(6)).

Dissent: (Kennedy):

Maj misapplies avoidance.  If 2 interps are plausible, choose the one that avoids constitutional problems, but in this case, majority interp isn’t plausible!

Majority defeats the repatriation goal

Interference w/ foreign relations

Fear that other countries will force their dangerous criminals on us

Perveres result:  Those who committed worst crimes least likely to be accepted; most likely to stay!

Encourages aliens to make it look like their repatriation is not foreseeable

Risk posed by dangerous aliens is real

It’s not arbitrary/capricious to detain aliens when there is risk of flight or danger

Zadvydas begins a retreat from plenary power doctrine: allows lower courts to engage in foreign relations analysis to see if repatriation is reasonably foreseeable; looks at govt.’s treatment of detainees; limits deference (Chadha)

Reflections on Zadvydas:

A better opinion wd’ve held DP applies to all immi proceedings; affirmed presumption against holding persons on grounds of dangerousness; held indefinite detention only OK in exceptional circumstances.

Court should have found that procedural defects of detention made it unconstitutional

Clark v. Martinez: aliens were found inadmissible and detained pending removal past the 6 month period. Issue is whether Zadvydas construction of 241(a)(6) applies to aliens ordered removed who are inadmissible.

Reasoning (Scalia): Zadvydas applies; uses canon of constitutional avoidance.

Holding: govt. has not shown that there’s a substantial likelihood of removal, detention is violation.

Concurrence (O’Connor): possible for govt. to detain past the 6 months if it shows that longer period is reasonably necessary to effect removal, but govt. has not shown this here. There are other statutory means for detaining, i.e. 236A(a)(3) for terrorists. Even if released, alien is subject to conditions.

Dissent (Thomas): says Zadvydas does not apply to aliens found to be inadmissible, only to those already admitted.  Zadvydas distinguished Mezei as dealing w/ alien seeking admission-so it’s clear Court was treating categories of aliens differently.

Wants to overrule Zadvydas.

Reads Zadvydas as establishing a two step procedure: (1) Is there constitutional problem w/ indefinite detention of alien seeking admission? (2) If so, apply constitutional avoidance.

RESPONSE: text of statute doesn’t distinguish between LPR and aliens seeking admission

Remember: Congress can amend the statute to authorize indefinite detention. (Specter version of bill tries it).

INA Provisions

235(b)(2): Arriving aliens “shall be detained” => sounds like a command but parole is possible under some conditions

236(a) “All other aliens “may be detained or released => more discretion regarding aliens not seeking admission

236 (c) Mandatory detention = added in 1988 and has expanded in scope over time, mandatory detention for a certain class of aliens (terrorists grounds, removal under some criminal grounds) with a few exceptions – witness protection or cooperation and when the individual doesn’t pose a risk

241(a):  Detention after removal order

90 day rule (does not extend to terrorist and some other criminals)

After 90 days – discretion to release (AG must make specific determination to keep holding) (241(a)(6))

Court Review (750-74, Handouts #6 & #7)


Generally, administrative action is reviewable in fede courts unless Congress makes an exception

In the past immigration cases not subject to judicial review; but because many involved detention & led to habeas

1955: APA presumption also applied to immigration cases.

1961 reforms: a) for exclusion orders habeas is the only remedy; b) for deportation orders, review via Hobbs Act (go direct from an agency to the court of appeals)

1996 legislation:

AEDPA: Makes it difficult to get habeas; takes away jurisdiction over agg fel/drug cases.

Kolster: Applies jurisdiction-stripping retroactively (to cases already pending but now coming up for review).

Reaffirms Plascencia – there are DP rights here

Can Congress constitutionally give admin agency final say over deportation?  Yes.

No DP vio as long as there’s another ave. of review (residual const habeas which INS concedes exists).

IIRIRA: eliminates separate review systems for exclusion/deportation.

St. Cyr:

Post-1996, so AG said AEDPA/IIRIRA strip him of discretion to grant waivers in case of criminal offenses.

Questions: Is this true, and can a court review his interp?

Potential constitutional problem w/precluding any review (Art. III, suspension clause).

Court avoids.

To avoid, it has to deny that legislative intent is clear.

Title (something really obvious) not binding part of stat;

repeal doesn’t include all habeas but only a specific habeas contained in a former statute;

Heikkila: held APA judicial review didn’t mean habeas (that doesn’t say whether habeas = JR at all)

Response: Congress says it did intend to strip habeas jurisdiction – but opens up Hobbs Act avenue again!

Is review in a court of appeal as meaningful as a habeas review?

Could change anytime.

Current Statute:

242(a)(1) Hobbs Act as sole avenue for review – go directly to appeals courts

242(a)(2)(a) screening decisions in admissions are not subjected to judicial review

242(a)(2)(b) discretionary decisions are not subjected to judicial review

242(a)(2)(c) Strips jurisdiction in some cases: criminal aliens (some exceptions throughout, though)