533 U.S. 678 (2001)
When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory removal period, during which time the alien normally is held in custody.1 After entry of a final removal order and during the 90-day removal period, aliens must be held in custody.2 Subsequently the Government may continue to detain an alien who still remains here or release that alien under supervision.3 INS regulations provide for an initial District Director review followed by panel review after three months that considers the alien's disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and family ties.4
The first case concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948.5 When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since.6 Zadvydas has a long criminal record involving drug crimes, attempted robbery, attempted burglary, and theft.7 Most recently he was convicted of possessing with intent to distribute cocaine, sentenced to sixteen years' imprisonment, released on parole after two years, taken into INS custody, and in 1994 ordered deported to Germany.8
Germany told the INS that it would not accept Zadvydas because he was not a German citizen.9 Lithuania refused because he was neither a Lithuanian citizen nor a permanent resident.10 The Dominican Republic also declined.11 Lithuania later rejected Zadvydas' effort to obtain citizenship based on his parents' citizenship.12
The second case is that of Kim Ho Ma, who was born in Cambodia in 1977.13 When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven.14 In 1995 at age seventeen Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to thirty-eight months' imprisonment.15 He served two years, after which he was released into INS custody.16
In light of his conviction of an aggravated felony, Ma was ordered removed.17 Although the 90-day removal period expired in early 1999, the INS continued to keep Ma in custody because it was unable to conclude that he would remain nonviolent and not violate the conditions of release given his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike.18 A panel of five judges in the Western District of Washington considering Ma's and about one hundred similar cases together issued a joint order, held an evidentiary hearing, decided there was no realistic chance that Cambodia would accept Ma, and ordered him released.19
Zadvydas filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in September 1995.20 In October 1997 a Federal District Court granted the writ and ordered him released under supervision, but the Fifth Circuit reversed in 1999.21 Ma filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in 1999, after which the Ninth Circuit affirmed his release in 2000. Zadvydas asked the Supreme Court to review the Fifth Circuit decision authorizing his continued detention.22 The Government asked the Court to review the Ninth Circuit decision forbidding Ma's continued detention.23 The Court granted writs in both cases, consolidated them for argument on February 21, 2001, and decided them together.24
Whether federal courts have jurisdiction under 28 U.S.C. § 2241 to hear statutory and constitutional challenges to post-removal-period detention?25
The primary federal habeas corpus statute confers jurisdiction upon the federal courts to hear cases in which a person claims to be held in custody in violation of the Constitution or laws of the United States.
Yes. Zadvydas filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in September 1995 challenging his continued detention after the removal period. Ma filed a similar petition in 1999. The Court concludes that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.26
Section 1231(h) does not deprive an alien of the right to rely on § 2241 to challenge detention that is without statutory authority. Section 1252(a)(2)(B)(ii) does not bar review because the aliens challenge the extent of the Attorney General's authority rather than the exercise of discretion in a particular case.
Federal courts possess jurisdiction under 28 U.S.C. § 2241 to adjudicate the aliens' statutory and constitutional challenges to their post-removal-period detention.27
Whether 8 U.S.C. § 1231(a)(6) authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal?28
When a statute raises serious constitutional doubts, the Court first ascertains whether a construction of the statute is fairly possible by which the question may be avoided.29 Applying that principle here, the statute is read to limit post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States.30
No. The statute's text uses the word "may," which is ambiguous as to duration and does not necessarily suggest unlimited discretion.31 The history of the statutes shows no clear congressional intent to authorize indefinite or permanent detention.32 Zadvydas remained in custody years after Germany, Lithuania, and the Dominican Republic all refused repatriation.33 Once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.34
The Court therefore construes the statute to contain an implicit reasonable time limitation.
Section 1231(a)(6) authorizes detention only for a period reasonably necessary to secure removal and does not permit indefinite detention of removable aliens.35
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia maintains that the statute plainly grants the Attorney General authority to detain criminal aliens with no specified time limit.36 He asserts that no constitutional right to release into the United States exists for an alien under a final removal order who concededly has no legal right to be present.37 Scalia concludes that Mezei controls these cases because the majority's distinction between entered and non-entered aliens does not create a substantive due process right to supervised release into the country.38
Scalia emphasizes that the claim is at bottom a claimed right of release into this country by an individual who has no legal right to be here.39
Joined by Chief Justice Rehnquist, Justice Scalia, Justice Thomas
Justice Kennedy contends that the statute's text and structure demonstrate clear congressional intent to allow detention beyond the removal period whenever an alien poses a flight risk or community danger.40 He argues that the majority's construction defeats the statutory purpose of protecting the public.41 Kennedy states that the ruling improperly inserts judicial oversight into repatriation negotiations with foreign powers.42
The 6-month period invented by the Court makes the statutory purpose to protect the community ineffective because the risk to the community does not diminish simply because removal negotiations stall.43
Whether the distinction between aliens who have effected an entry into the United States and those stopped at the border affects the analysis of indefinite detention after a final removal order?44
Once an alien has entered the United States, the Due Process Clause applies to all persons within the United States, including aliens, and protects against indefinite civil detention absent special justification.45 An alien stopped at the border and denied entry stands in a different constitutional position as illustrated by Mezei.46
Yes. Zadvydas immigrated at age eight and lived continuously in the United States.47 Ma arrived at age seven and resided here as a resident alien.48 Both therefore receive due process protections unavailable to the excludable alien in Mezei who never effected entry.49
This renders indefinite detention constitutionally problematic for these entered aliens and supports the statutory construction that avoids that result.50 The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.
The entry distinction is critical and means that aliens such as Zadvydas and Ma who have entered the country receive greater due process safeguards against indefinite post-removal detention than aliens stopped at the border.51
Related opinions on this issue
Joined by Chief Justice Rehnquist, Justice Scalia, Justice Thomas
Justice Kennedy acknowledges that the distinction between entered and non-entered aliens runs throughout immigration law.52 Removable aliens possess greater procedural interests than those at the threshold of entry.53 He maintains that both categories remain subject to detention when they present flight risks or dangers to the community.54
The regulations already supply adequate review procedures to protect against arbitrary confinement.55 Kennedy stresses that removable aliens receive thorough procedural safeguards before a final order is entered and that due process requires only freedom from arbitrary detention, which the existing review process satisfies.56