No. 00-38 

In the Supreme Court of the United States 

JANET RENO, ATTORNEY GENERAL, ET AL., 
PETITIONERS 

v. 

KIM HO MA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

DONALD KEENER 
QUYNH VU 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Section 1231(a)(1) of Title 8 of the United States 
Code provides that when an alien has been ordered 
removed from the United States, the Attorney General 
shall remove the alien within 90 days. Section 
1231(a)(2) requires the detention during the 90-day 
removal period of certain aliens, including those who 
have been convicted of an aggravated felony. Section 
1231(a)(6) then provides, in relevant part, that an alien 
who is removable for having committed an aggravated 
felony or “who has been determined by the Attorney 
General to be a risk to the community or unlikely to 
comply with the order of removal, may be detained 
beyond the removal period and, if released, shall be 
subject to the terms of supervision in paragraph (3).” 8 
U.S.C. 1231(a)(6) (Supp. IV 1998). The question pre- 
sented is: 

Whether the Attorney General is authorized to 
continue to detain an alien beyond the 90-day removal 
period under 8 U.S.C. 1231(a)(6) (Supp. IV 1998) if the 
alien cannot be removed immediately from the country 
but the Attorney General has determined that the alien 
would pose a risk of flight or danger to the community 
if released, and the alien’s custody is subject to periodic 
administrative review. 

(I) 

II 

PARTIES TO THE PROCEEDINGS 

Petitioners are the Attorney General of the United 
States, the Immigration and Naturalization Service 
(INS), and the INS Acting District Director in Seattle, 
Washington. The three petitioners were named as 
respondents in the district court and were appellants in 
the court of appeals. Respondent is Kim Ho Ma, who 
brought the instant petition for a writ of habeas corpus 
in the district court and was appellee in the court of 
appeals. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory and regulatory provisions involved ......................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
14 

Argument: 

Section 1231(a)(6) of Title 8 authorizes the Attor- 
ney General to detain an alien beyond the statutory 

removal period if the alien cannot be removed 

immediately from the country but the Attorney 

General has determined that the alien would pose a 

risk of flight or danger to the community if 

released ................................................................................... 18 

A. The plain language of Section 1231(a)(6) vests 

the Attorney General with the authority to 

detain aliens such as respondent beyond the 

removal period ............................................................... 
21 

B. Other statutory provisions governing deten- 
tion of criminal aliens confirm that Congress 

did not mandate the release of criminal aliens 

who pose a risk of flight or danger to the com- 
munity ............................................................................. 26 

C. The statutory history of Section 1231(a)(6) 

further demonstrates that the Attorney 

General has statutory authority to detain 

aliens in respondent’s position .................................... 
29 

1. The predecessor statutes to IIRIRA support 

an interpretation of Section 1231(a)(6) that 

authorizes the Attorney General to detain 

criminal aliens beyond the statutory re- 
moval period ........................................................... 29 

(III) 

IV 

Table of Contents—Continued: 

Page 

2. The legislative history of Section 1231(a)(6) 

confirms the Attorney General’s statutory 

authority to detain aliens in respondent’s 

position .................................................................... 33 

D. The Attorney General’s interpretation of 

Section 1231(a)(6) is entitled to deference ............... 
43 

E. The court of appeals erred in construing 

Section 1231(a)(6) to bar detention of respon- 
dent in order to avoid what it believed to be 

a serious constitutional question ................................ 

45 

Conclusion ....................................................................................... 50 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th 

Cir.), cert. denied, 516 U.S. 976 (1995) ........................... 

13, 49 

Bates v. United States, 522 U.S. 23 (1997) ........................ 

23 

Brown v. Gardner, 513 U.S. 115 (1994) .............................. 

47 

Carlson v. Landon, 342 U.S. 524 (1952) ........................... 

23 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) ...................................... 

44 

City of Kent v. Kim Ho Ma, No. K24949FV (Mun. 

Ct., City of Kent, King County, Wash. July 25, 

2000) ......................................................................................... 12 

City of Kent v. Kim Ho Ma, No. 00-1-07772-2SEA 

(King County Super. Ct., Wash. Sept. 27, 2000) .............. 

12 

Commodity Futures Trading Comm’n v. Schor, 

478 U.S. 833 (1986) ................................................................ 

45 

Dunn v. Commodity Futures Trading Comm’n, 

519 U.S. 465 (1997) .............................................................. 

29-30 

Duy Dac Ho v. Greene, 204 F.2d 1045 (10th Cir. 

2000) .......................................................................... 23, 24, 32, 50 

V 

Cases—Continued: Page 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ............... 

17, 21, 

44, 45 

Landon v. Plasencia, 459 U.S. 21 (1982) ........................... 
50 

Miller v. French, 120 S. Ct. 2246 (2000) ............................ 

45 

Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 

1999) ......................................................................................... 46 

Chae Chan Ping v. United States, 130 U.S. 581 

(1889) ........................................................................................ 43 

Reno v. Flores, 507 U.S. 292 (1993) .................................. 

43 

Salinas v. United States, 522 U.S. 52 (1997) .................... 

45 

Shaughnessy v. United States ex rel. Mezei, 

345 U.S. 206 (1953) ......................................... 

13, 17, 24, 43, 46 

Sinclair Refining Co. v. Atkinson, 370 U.S. 195 

(1962) ........................................................................................ 45 

Spector v. Landon, 209 F.2d 481 (9th Cir. 1954) ............... 

24 

United States v. Albertini, 472 U.S. 675 (1985) ................ 

45 

United States v. Rodgers, 461 U.S. 677 (1983) ................. 

22 

United States v. Wells, 519 U.S. 482 (1997) ....................... 

45 

United States v. Witkovich, 353 U.S. 194 

(1957) ............................................................................. 

18, 47, 48 

Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 

1999), cert. granted, 121 S. Ct. 297 (2000) .... 

13-14, 18, 49, 50 

Statutes and regulations: 

Act of June 27, 1952, ch. 477, § 242, 66 Stat. 208 ................. 

30 

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 

§ 7343(a), 102 Stat. 4470 ....................................................... 

31 

Antiterrorism and Effective Death Penalty Act of 

1996, Pub. L. No. 104-132, § 440(c), 110 Stat. 

1277 ..................................................................................... 32, 38 

Illegal Immigration Reform and Immigrant Responsi- 
bility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 

3009-546: 

§ 301, 110 Stat. 3009-575 .................................................. 

19 

§ 303(a), 110 Stat. 3009-585 ......................................... 

27, 39 

§ 303(b)(2), 110 Stat. 3009-586 ...................................... 4, 39 

VI 

Statutes and regulations—Continued: 
Page 

§ 303(b)(2), 110 Stat. 3009-586 to 3009-587 ................... 

39 

§ 303(b)(3)(B), 110 Stat. 3009-587 ................................... 

4 

§ 303(B)(3)(B)(ii), 110 Stat. 3009-587 ......................... 

26, 39 

§ 305(a)(3), 110 Stat. 3009-598 ..................................... 

26, 28 

§ 307(a), 110 Stat. 3009-614 ......................................... 

26, 42 

Immigration Act of 1917, ch. 29, 39 Stat. 874 .................. 

14, 24 

Immigration Act of 1990, Pub. L. No. 101-649, 

104 Stat. 4978 .......................................................................... 

34 

§ 504(a), 104 Stat. 5049 ..................................................... 

31 

Immigration and Nationality Act, 8 U.S.C. 1101 

et seq. .................................................................................... 

15, 18 

8 U.S.C. 1101(a)(20) (1994) .......................................... 

5, 50 

8 U.S.C. 1101(a)(43)(F) (Supp. IV 1998) .................... 

3 

8 U.S.C. 1101(a)(47)(B)(ii) (Supp. IV 1998) ............. 

5, 50 

8 U.S.C. 1103(a) (Supp. IV 1998) ............................... 

44 

8 U.S.C. 1158 (Supp. IV 1998) ...................................... 

3 

8 U.S.C. 1182 (1994) ................................................... 

19, 34 

8 U.S.C. 1182 (Supp. IV 1998) ...................................... 

21 

8 U.S.C. 1182(a) (Supp. IV 1998) ................................. 

18 

8 U.S.C. 1182(a)(2) (Supp. IV 1998) ........................ 

27, 28 

8 U.S.C. 1182(a)(3)(B) (Supp. IV 1998) .................. 

27, 28 

8 U.S.C. 1225(b) (Supp. IV 1998) ................................. 

19 

8 U.S.C. 1226 (Supp. IV 1998) ...................................... 

19 

8 U.S.C. 1226(a) (Supp. IV 1998) ................................. 

1a 

8 U.S.C. 1226(b) (Supp. IV 1998) ............................... 

1a-2a 

8 U.S.C. 1226(c) (Supp. IV 1998) ....................... 

16, 27, 28 

8 U.S.C. 1226(c)(1) (Supp. IV 1998) ........................ 

27, 2a 

8 U.S.C. 1226(c)(2) (Supp. IV 1998) .................... 

27, 2a-3a 

8 U.S.C. 1227 (1994) ....................................................... 

19 

8 U.S.C. 1227 (Supp. IV 1998) ...................................... 

19 

8 U.S.C. 1227(a)(1)(C) (Supp. IV 1998) ...................... 

21 

8 U.S.C. 1227(a)(2) (Supp. IV 1998) ........................ 

21, 28 

8 U.S.C. 1227(a)(2)(A)(i) (Supp. IV 1998) .................. 

27 

8 U.S.C. 1227(a)(2)(A)(ii) (Supp. IV 1998) ................. 

27 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998) ........ 3, 21, 27 

VII 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1227(a)(2)(B) (Supp. IV 1998) ...................... 

27 

8 U.S.C. 1227(a)(2)(C) (Supp. IV 1998) ...................... 

27 

8 U.S.C. 1227(a)(2)(D) (Supp. IV 1998) ...................... 

27 

8 U.S.C. 1227(a)(4) (Supp. IV 1998) ............................ 

22 

8 U.S.C. 1227(a)(4)(B) (Supp. IV 1998) .................. 

27, 28 

8 U.S.C. 1228 (Supp. IV 1998) ...................................... 

19 

8 U.S.C. 1228(b) (Supp. IV 1998) ................................. 

19 

8 U.S.C. 1228(c) (Supp. IV 1998) ................................. 

19 

8 U.S.C. 1229a (Supp. IV 1998) .................................... 

19 

8 U.S.C. 1231 (Supp. IV 1998) .................................. 

17, 25 

8 U.S.C. 1231(a) (Supp. IV 1998) ................................. 

2 

8 U.S.C. 1231(a)(1)(A) (Supp. IV 1998) .................. 

19, 3a 

8 U.S.C. 1231(a)(1)(B) (Supp. IV 1998) ............ 

20, 3a-4a 

8 U.S.C. 1231(a)(1)(C) (Supp. IV 1998) ........... 

20, 26, 4a 

8 U.S.C. 1231(a)(2) (Supp. IV 1998) .................... 

5, 6, 16, 

20, 28, 29, 4a 

8 U.S.C. 1231(a)(3) (Supp. IV 1998) .................. 
47, 4a-5a 

8 U.S.C. 1231(a)(6) (Supp. IV 1998) .................... 

passim 

8 U.S.C. 1231(a)(7) (Supp. IV 1998) ........................ 

16, 25, 

26, 5a-6a 
8 U.S.C. 1231(b)(3) (Supp. IV 1998) ............................ 

3 

8 U.S.C. 1231(b)(3)(B)(ii) (Supp. IV 1998) ................. 

3 

8 U.S.C. 1252 (1952) ....................................................... 

30 

8 U.S.C. 1252 (1982) ....................................................... 

31 

8 U.S.C. 1252 (1994) ....................................................... 

19 

8 U.S.C. 1252(a)(1) (1988) .............................................. 

31 

8 U.S.C. 1252(a)(2) (1994) ................................... 

32, 36, 37 

8 U.S.C. 1252(a)(2)(A) (1988 & Supp. II 1990) .......... 

31 

8 U.S.C. 1252(a)(2)(B) (1988 & Supp. II 1990) .......... 

31 

8 U.S.C. 1252(a)(2)(B) (Supp. III 1991) ...................... 

32 

8 U.S.C. 1252(a)(2)(B) (1994) .................................... 

32, 39 

8 U.S.C. 1252(c) (1952) ................................................... 

30 

8 U.S.C. 1252(c) (1982) ............................................... 

30, 31 

8 U.S.C. 1252(c) (1988) ................................................... 

31 

8 U.S.C. 1252(d) (1952 & Supp. V 1957) .......... 30, 47, 48 

VIII 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1252(d) (1982) .................................................. 

31 

8 U.S.C. 1252(d) (1988) .................................................. 

31 

8 U.S.C. 1252(e) (1952) .................................................. 

48 

8 U.S.C. 1253(d) (1994) .................................................. 

42 

Miscellaneous and Technical Immigration and 

Naturalization Amendments of 1991, Pub. L. 

No. 102-232, § 306(a)(4), 105 Stat. 1751 .............................. 

32 

28 U.S.C. 2241 ............................................................................ 

7 

8 C.F.R.: 

Section 1.1(p) ........................................................................ 

5, 50 

Section 3.0-3.65 ....................................................................... 

19 

Section 212.12 ......................................................................... 

11 

Section 212.12(a) .................................................................... 

11 

Section 235.3(b) ...................................................................... 

19 

Section 238.1(b) ...................................................................... 

19 

Section 241.4 ................................................................ 

2, 6, 9, 49 

Miscellaneous: 

141 Cong. Rec. 15,068 (1995) ................................................... 

38 

142 Cong. Rec. 6012-6015 (1996) ............................................ 
36 

65 Fed. Reg. 40,540-40,548 (2000) .......................................... 
12 

H.R. 1915, 104th Cong., 1st Sess. (1995) ........................... 
34, 35 

H.R. 2202, 104th Cong., 1st Sess. (1995) ............................... 
35 

H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 
(1996) .................................................................................... 
38, 39 

H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1 
(1996) .................................................................................... 
35, 36 

H.R. Rep. No. 879, 104th Cong., 2d Sess. (1997) ................. 
34, 

35, 36, 39 

Hearing Before the Subcomm. on Immigration and 
Claims of the House Comm. on the Judiciary, 
104th Cong., 2d Sess. (1996) ................................................. 

40 
Letter from Andrew Fois, Assistant Attorney 

General, to Robert Dole, Majority Leader (Apr. 
16, 1996) ................................................................................... 41 

IX 

Miscellaneous—Continued: Page 

Letter from Jamie S. Gorelick, Deputy Attorney 

General, to Henry J. Hyde, Chairman, Committee 
on the Judiciary (Sept. 15, 1995) ..................................... 
40, 41 

Letter from Jamie S. Gorelick, Deputy Attorney 

General, to Lamar Smith, Chairman, Sub-Com- 
mittee on Immigration and Claims (May 31, 
1996) ..................................................................................... 

41, 42 
Letter from Jamie S. Gorelick, Deputy Attorney 

General, to Richard A. Gephardt, Minority 
Leader (Mar. 13, 1996) .......................................................... 

41 
S. 735, 104th Cong., 1st Sess. (1995) .................................. 
36, 37 

S. 1664, 104th Cong., 2d Sess. (1996) ..................................... 38 

In the Supreme Court of the United States 

No. 00-38 

JANET RENO, ATTORNEY GENERAL, ET AL., 
PETITIONERS 

v. 

KIM HO MA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE PETITIONERS 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-33a) 
is reported at 208 F.3d 815. The July 9, 1999, joint 
order of five district court judges in this case and four 
other cases (Pet. App. 34a-51a) is reported at 56 F. 
Supp. 2d 1149. The July 13, 1999, opinion of the district 
court ordering an evidentiary hearing in respondent’s 
case (Pet. App. 52a-54a) is reported at 56 F. Supp. 2d 
1165. The September 29, 1999, opinion of the district 
court granting respondent habeas corpus relief (Pet. 
App. 55a-61a) is unreported. The June 2, 1999, custody 
decision by the Immigration and Naturalization Service 
(INS) District Director and the underlying May 6, 1999, 
custody review report (Pet. App. 77a-86a) are unre- 
ported. The September 29, 1999, custody decision of 
the INS headquarters review committee (Pet. App. 
87a-89a) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
April 10, 2000. A petition for rehearing was denied on 

(1) 

2 

June 2, 2000 (Pet. App. 62a-63a). The petition for a writ 
of certiorari was filed on July 5, 2000, and was granted 
on October 10, 2000. The jurisdiction of this Court rests 
on 28 U.S.C. 1254(1). 

STATUTORY AND REGULATORY PROVISIONS 
INVOLVED 

1. Section 1231(a) of Title 8 of the United States 
Code is set forth in relevant part at App., infra, 3a-6a. 

2. The regulations of the INS that currently govern 
the detention of aliens beyond the 90-day removal pe- 
riod, 8 C.F.R. 241.4, are set forth at Pet. App. 90a-91a. 

3. The February 3, 1999, memorandum from the 
Executive Associate Commissioner of the INS to INS 
Regional Directors, entitled “Detention Procedures for 
Aliens Whose Immediate Repatriation Is Not Possible 
or Practicable,” is set forth at Pet. App. 64a-68a. The 
August 6, 1999, memorandum from the Executive 
Associate Commissioner of the INS to INS Regional 
Directors entitled “Interim Changes and Instructions 
for Conduct of Post-order Custody Reviews,” is set 
forth at Pet. App. 69a-76a. 

STATEMENT 

1. a. Respondent is a native and citizen of Cambodia 
who entered the United States as a refugee in 1985 and 
became a lawful permanent resident in 1987. Pet. App. 
56a. In 1996, respondent was convicted in state court of 
first degree manslaughter after he, along with four 
other gang members, “ambushed and shot a fellow gang 
member” in April of 1995. Ibid.; J.A. 54; A.R. 144.1 The 
five gang members drove up to a parking lot together 
in a car; two of them got out with guns and opened fire 
on the targeted gang member. A.R. 144-145. The 

1 A.R. refers to the certified Administrative Record filed by the 
INS in the district court. See J.A. 3. 

3 

shooters then returned to the car and the five gang 
members attempted to escape, but were apprehended 
by police after a chase. A.R. 144-146. Respondent was 
sentenced to three years and two months’ imprison- 
ment. Pet. App. 60a n.4. 

b. On June 6, 1997, respondent was released from 
state custody and, pursuant to a detainer previously 
lodged by the Immigration and Naturalization Service 
(INS), was transferred to INS custody and ordered 
detained. A.R. 48, 194, 249. On July 3, 1997, the 
INS issued respondent a notice to appear, charging 
him with being subject to removal under 8 U.S.C. 
1227(a)(2)(A)(iii) (Supp. IV 1998) because he had been 
convicted of an “aggravated felony,” which includes 
a crime of violence for which the term of imprisonment 
imposed was one year or more, see 8 U.S.C. 
1101(a)(43)(F) (Supp. IV 1998). A.R. 36, 186. 

On September 12, 1997, an immigration judge found 
that respondent was subject to removal as charged and 
was ineligible for asylum and withholding of removal 
under 8 U.S.C. 1158 and 1231(b)(3) (Supp. IV 1998). 
J.A. 26-32. Respondent appealed that ruling to the 
Board of Immigration Appeals (Board), which denied 
relief. J.A. 44-56. In an opinion dated October 26, 1998, 
the Board agreed that respondent was subject to 
removal under 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 
1998) as an aggravated felon. J.A. 44-46. The Board 
further held that respondent was ineligible for with- 
holding of removal under 8 U.S.C. 1231(b)(3)(B)(ii) 
(Supp. IV 1998), which precludes such relief if “the 
alien, having been convicted by a final judgment of a 
particularly serious crime is a danger to the community 
of the United States.” See J.A. 47. The Board agreed 
with the immigration judge that respondent’s convic- 
tion for participating in “a gang related violent ambush 
resulting in the death of [the] victim constitutes a 

4 

particularly serious crime” (J.A. 54), noting, inter alia, 
that he “received almost the maximum sentence that 
could be ordered based on his criminal record” (J.A. 52- 

53). 

c. During the pendency of his removal proceedings, 
respondent twice requested redetermination of the 
denial of his request for release on bond. On October 7, 
1997 (J.A. 33-37), and December 31, 1997 (J.A. 38-43), 
the immigration judge denied those requests. The im- 
migration judge determined that respondent’s deten- 
tion was authorized by Section 303(b)(3)(B) of the Ille- 
gal Immigration Reform and Immigrant Responsi- 
bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 
Div. C, § 303(b)(3)(B), 110 Stat. 3009-587. That section 
established transitional period custody rules, which 
authorized the Attorney General to release a lawfully 
admitted alien in respondent’s circumstances during 
the pendency of removal proceedings, but only if the 
alien “satisfies the Attorney General that the alien will 
not pose a danger to the safety of other persons or of 
property and is likely to appear for any scheduled 
proceedings.” Ibid.; J.A. 36, 41.2 The immigration 
judge determined that respondent “would be a danger 
to the community if he is released” (J.A. 43), based, 
inter alia, on a psychological evaluation of respondent 
stating that he “exhibited little insight, denied any 
knowledge of the instant offense, and said he was not 
involved in any gang activity despite information to the 
contrary” (J.A. 42).3 The immigration judge also 

2 As authorized by IIRIRA Section 303(b)(2), the transitional 
period custody rules were in effect for a two-year period com- 
mencing with IIRIRA’s effective date. 110 Stat. 3009-586. See 
note 23, infra 

3 The report explained that “[p]olice reports indicate [that 
respondent] had been associated with the gang and its members 

5 

pointed to respondent’s lack of credibility in denying 
that he abused drugs (J.A. 42) and found “nothing in the 
respondent’s file to indicate that he has rehabilitated” 
(J.A. 43).4 

2. a. Respondent’s order of removal became final on 
October 26, 1998. The final order of removal extin- 
guished respondent’s status as a lawful permanent resi- 
dent and eliminated any legal right of respondent to 
remain in this country. See 8 U.S.C. 1101(a)(20) (1994); 
8 U.S.C. 1101(a)(47)(B)(ii) (Supp. IV 1998); 8 C.F.R. 

1.1(p). When the order became final, the INS began the 
process to remove respondent to Cambodia. By letter 
dated May 5, 1999, the United States requested travel 
documents for respondent from the Cambodian govern- 
ment. Pet. App. 58a. 

During the 90-day period following the issuance of 
respondent’s final removal order, respondent was de- 
tained by the INS pursuant to 8 U.S.C. 1231(a)(2) 
(Supp. IV 1998). That section mandates detention, dur- 
ing the 90-day period following entry of a final order, of 
an alien who, inter alia, has been found removable 
based on a conviction for an aggravated felony. 

b. The INS was not able to remove respondent to 
Cambodia within the 90-day period following entry of 
his final removal order. Upon expiration of that period 
on January 24, 1999, respondent was no longer subject 
to mandatory detention. Instead, he was thereafter 

for some time” and that “he was arrested at least twice [before 
that offense] with one of his codefendants on this case.” A.R. 50. 

4 In addition, while respondent was in INS detention, he had to 
be transferred to another detention facility “[d]ue to behavior 
problems.” A.R. 226. In a declaration in support of his request to 
be transferred to another facility where other INS detainees were 
housed, respondent acknowledged that he could “almost under- 
stand why the immigration judge may not want to release [him] on 
a bond.” A.R. 231. 

6 

subject to 8 U.S.C. 1231(a)(6) (Supp. IV 1998), which 
authorizes the Attorney General to detain an alien who, 
inter alia, has been found removable based on a con- 
viction of an aggravated felony or “who has been 
determined by the Attorney General to be a risk to the 
community or unlikely to comply with the order of 
removal.” 

The continued detention of an alien under Section 
1231(a)(6) is subject to periodic review pursuant to the 
governing INS regulations, 8 C.F.R. 241.4, and imple- 
menting directives, see Pet. App. 64a-68a, 90a-91a. By 
memorandum dated February 3, 1999, entitled “Deten- 
tion Procedures for Aliens Whose Immediate Repatria- 
tion Is Not Possible or Practicable,” the Executive As- 
sociate Commissioner of the INS “clarifie[d] the author- 
ity of [INS] District Directors to make release decisions 
and emphasize[d] the need to provide a review of 
administratively final order detention cases both before 
and after the expiration of the mandatory 90 day 
detention period at § 241(a)(2) of the Immigration and 
Nationality Act [8 U.S.C. 1231(a)(2) (Supp. IV 1998)].” 
Pet. App. 64a. The first periodic review mandated by 
INS procedures is during the 90-day removal period. 
Ibid. Thereafter, a detainee’s custody status is auto- 
matically reviewed on a periodic basis “to determine 
whether there has been a change in circumstances that 
would support a release decision since the 90 day 
review.” Id. at 66a. 

On April 13, 1999, the INS notified respondent that, 
because the INS was encountering delays in making 
arrangements for respondent’s removal, it would con- 
sider releasing him from detention. J.A. 57-58. The 
INS explained, though, that before respondent could be 
released, the INS District Director would have to be 
satisfied that, if released, respondent would not pose a 
danger to the community and would appear for all 

7 

future proceedings. J.A. 57. The INS listed various 
factors that the District Director would consider in 
reaching his decision and notified respondent that he 
could present evidence that he would not pose a danger 
to the community and would appear as ordered in the 
future. J.A. 57-58. 

Pursuant to that notice, the INS conducted its first 
periodic review of respondent’s custody in May 1999. 
That review included an interview of respondent and 
consideration of supporting documentary material sub- 
mitted by his family and friends. Pet. App. 77a-86a. On 
June 2, 1999, the INS notified respondent that it had 
decided to continue to detain him, based on a considera- 
tion of the factors set forth in the governing regulations 
and all material submitted by respondent during the 
review process. Ibid. That notice detailed the state- 
ment made by respondent and his attorney, as well as 
the evidence submitted by respondent concerning his 
family ties, but also noted, under “Community Con- 
cerns,” that respondent “was a member of the ‘Local 
Asian Boyz’ (LAB) in the Seattle area and was con- 
victed of Manslaughter in the 1st Degree.” Id. at 80a. 
It further noted that respondent had to be transferred 
to a different detention facility because of conduct while 
in INS custody. Ibid. 

The notice informed respondent that his custody 
would be subject to review again on December 2, 1999. 
It also informed respondent that he could, at any time, 
request a redetermination of his custody status, if sup- 
ported by evidence that he would appear at all future 
immigration proceedings and that he would not pose a 
threat to the community. Pet. App. 78a. 

3. Meanwhile, on February 2, 1999, respondent had 
filed a petition for a writ of habeas corpus, pursuant to 
28 U.S.C. 2241, in the United States District Court for 
the Western District of Washington. J.A. 1. The peti- 

8 

tion, as amended, contended that respondent’s contin- 
ued detention was unconstitutional. J.A. 59-65. Re- 
spondent’s case was one of approximately 100 such 
cases then pending in the Western District of Washing- 
ton. 

a. On July 9, 1999, five judges of the district court 
issued a joint order in respondent’s case and four other 
“lead” cases. Pet. App. 34a-51a. The judges addressed 
the cases jointly because they involved substantive and 
procedural due process challenges similar to those 
brought by a large number of aliens who were in INS 
detention in that district following final orders of 
removal and whose immediate removal was not then 
possible. Id. at 35a. The court did not, however, ques- 
tion that 8 U.S.C. 1231(a)(6) (Supp. IV 1998) authorizes 
the continued detention of such aliens as a statutory 
matter. Pet. App. 38a. 

The five-judge panel’s joint order established a 
framework for analyzing an individual habeas peti- 
tioner’s claim that his detention violates due process. It 
first rejected the government’s submission that the 
interest of respondent and the other habeas petitioners 
is the interest in being released into the United States 
pending their removal. In the panel’s view, their inter- 
est is, more broadly, a “fundamental liberty interest in 
being free from incarceration,” which requires “strict 
scrutiny” of any decision to detain aliens in respon- 
dent’s position. Pet. App. 43a-44a. The panel rejected 
the government’s argument that a more deferential 
standard should apply because of the plenary power of 
the Legislative and Executive Branches over immigra- 
tion matters, holding that such deference does not 
extend to detention following a final order of removal. 
Id. at 45a. 

Applying strict scrutiny, the five-judge panel 
acknowledged that detention of aliens such as respon- 

9 

dent furthers the legitimate governmental interest in 
securing the safe removal of aliens and what it termed 
the “incidental” goals of preventing flight and protect- 
ing the public from dangerous felons. Pet. App. 46a. In 
the panel’s view, then, the substantive due process 
question turns on whether the detention is excessive in 
relation to those goals. Id. at 47a. Resolution of that 
question, it explained, requires a court to “balance the 
likelihood that the government will be able to effectu- 
ate deportation, against the dangerousness of a peti- 
tioner and the likelihood that he will abscond if re- 
leased.” Ibid. The panel noted that the government’s 
interest in detention decreases as the probability of 
removal of the alien decreases, concluding that it would 
be excessive “to detain an alien indefinitely if deporta- 
tion will never occur.” Ibid. Application of that sub- 
stantive due process test was left to each judge in the 
individual cases. Ibid. 

The five-judge panel then turned to the procedural 
due process question. It reasoned that, if there is no 
substantive due process violation with respect to a 
particular alien under the framework it announced, it 
must be determined whether the procedures for deten- 
tion of the alien are adequate. Pet. App. 48a. The panel 
held that the procedures under which INS District 
Directors made release decisions—based on a review of 
the administrative file, the alien’s written submission or 
an interview with the alien, and consideration of the 
criteria identified in 8 C.F.R. 241.4—did not satisfy due 
process because, in its view, the INS “[did] not mean- 
ingfully and impartially review the petitioners’ custody 
status.” Pet. App. 50a. The panel therefore held that 
each habeas petitioner is entitled to a hearing before an 
immigration judge at which he or she can present 
evidence in support of release pending removal, and 
that the habeas petitioner must be able to appeal any 

10 

denial of a release request to the Board of Immigration 
Appeals. Id. at 51a. 

b. On July 13, 1999, the district court issued an order 
in respondent’s individual case, incorporating the joint 
order and applying the analysis of that order to his 
case. Pet. App. 52a-54a. The court determined that 
certain facts relevant to determining the weight of the 
government’s interest under the due process analysis 
were not adequately developed in the record, and it 
ordered an evidentiary hearing. Id. at 54a. 

c. On September 29, 1999, the district court granted 
respondent habeas corpus relief. Pet. App. 55a-61a. 
Although the government contended that the court 
should not adhere to the joint order in light of interven- 
ing developments, including the INS’s institution of 
additional review procedures, the court decided to 
follow the joint order. Id. at 56a n.1. 

Applying the framework of the joint order, the court 
first reviewed the government’s representations con- 
cerning negotiations between the United States and 
Cambodia about entering into a formal agreement for 
the repatriation of Cambodian nationals. Pet. App. 59a. 
Those negotiations included a meeting in September 
1999 between officers of the Department of State and 
the Cambodian Consulate in Washington, D.C., at 
which the United States’ preliminary proposal for a 
repatriation agreement was discussed. Despite those 
developments, the court concluded that “there is not a 
realistic chance that the government will accomplish 
[respondent’s] deportation to Cambodia.” Id. at 60a. 
The court then held that respondent’s detention, which 
it characterized as “indefinite,” “violates his right to 
substantive due process.” Ibid. The court also noted 
that, “[e]ven if there were a realistic chance of deport- 
ing [respondent], the government has not shown a 
strong interest in continuing his detention based upon 

11 

his threat to the public or his proclivity to abscond.” 
Ibid. The court therefore directed that respondent be 
released subject to appropriate conditions. Id. at 61a.5 

d. The district court stayed its order granting ha- 
beas corpus relief in order to permit the government 
time to seek a stay from the court of appeals. Pet. App. 
7a n.9. The court of appeals denied the stay request, 
and respondent was then released from INS custody on 
October 25, 1999. Ibid. On October 29, 1999, the gov- 
ernment filed an application in this Court for a stay of 
the district court’s order pending appeal to the Ninth 
Circuit. The Court denied that application. 120 S. Ct. 
466 (1999). 

4. During the pendency of respondent’s case, the 
INS had implemented additional interim review proce- 
dures for cases involving aliens such as respondent who 
are detained in INS custody following issuance of final 
orders of removal because their immediate removal is 
not practicable. See Pet. App. 69a-76a. By memoran- 
dum dated August 6, 1999, the INS Executive Associ- 
ate Commissioner directed that, under the new interim 
procedures, a decision to continue an alien in INS cus- 
tody would be subject to a review by INS Headquar- 
ters. The headquarters review is similar to that af- 
forded under the Cuban Review Plan, 8 C.F.R. 212.12, 
which has been in place for a number of years to review 
the status of Mariel Cubans—Cubans who came to the 
United States during the Mariel boatlift between April 
15 and October 1980, see 8 C.F.R. 212.12(a)—who have 
been ordered excluded from the United States but who 
cannot be returned to Cuba at this time. Pet. App. 71a. 

5 In light of its resolution of the case on substantive due process 
grounds, the court found it unnecessary to address any questions 
regarding procedural due process. Pet. App. 61a n.5. 

12 

Under the interim procedures, the June 1999 decision 
to continue respondent in custody became subject to 
INS Headquarters review. That review had not taken 
place by the time of the district court’s September 29, 
1999, order granting habeas corpus relief, but the adop- 
tion of the additional review procedures was brought to 
the court’s attention. See Pet. App. 57a. The Head- 
quarters review in respondent’s case took place on 
September 30, 1999, and the determination was to con- 
tinue respondent in INS custody. See id. at 87a-89a.6 

5. The court of appeals affirmed the district court’s 
judgment granting respondent habeas corpus relief, 
Pet. App. 1a-33a, but without reaching the constitu- 
tional grounds on which the district court had relied. 
The court of appeals instead relied on statutory 
grounds, holding that the INS lacks authority under 8 
U.S.C. 1231(a)(6) (Supp. IV 1998) to detain respondent 
beyond the 90-day removal period. Pet. App. 3a-4a.7 

6 On June 30, 2000, the Commissioner published proposed regu- 
lations to put in place a permanent custody-review program that 
would maintain or enhance the centralized review and other pro- 
cedural protections set forth in the interim procedures. 65 Fed. 

Reg. 40,540-40,548. 

7 On March 30, 2000, respondent was arrested for assaulting a 
female companion. Respondent was released by the state court on 
bond pending disposition of the resulting criminal charges. On 
June 26, 2000, the state court dismissed the charges. The State has 
appealed from that judgment. See City of Kent v. Kim Ho Ma, No. 
K24949FV (Mun. Ct., City of Kent, King County, Wash.), notice of 
appeal (filed July 25, 2000); City of Kent v. Kim Ho Ma, No. 00-1- 
07772-2SEA (King County Super. Ct., Wash.), order setting case 
schedule and deadline of Dec. 27, 2000, for filing of appellant’s brief 
(Sept. 27, 2000). 

After respondent’s arrest, he was informed by the INS that it 
intended to revoke his release from immigration custody based on 
his violation of the terms of release. Respondent filed a motion in 
district court on April 7, 2000, seeking an order to prevent the INS 

13 

The court of appeals acknowledged that Section 
1231(a)(6) unambiguously authorizes the Attorney 
General to continue criminal aliens in custody “beyond 
the removal period.” Pet. App. 10a. The court con- 
cluded, however, that, because Section 1231(a)(6) does 
not specify a particular length of time during which 
continued detention is authorized, it should be con- 
strued to permit detention “only for a reasonable time 
beyond the statutory removal period.” Id. at 11a. “In 
cases in which an alien has already entered the United 
States and there is no reasonable likelihood that a 
foreign government will accept the alien’s return in the 
reasonably foreseeable future,” the court “conclude[d] 
that the statute does not permit the Attorney General 
to hold the alien beyond the statutory removal period.” 
Ibid. The court explained that it adopted that construc- 
tion of Section 1231(a)(6) because it allowed the court to 
avoid deciding the constitutionality of respondent’s de- 
tention, id. at 14a-22a8; because the court was unwilling 

from ordering him back into custody for violating his release 
conditions. On April 10, 2000, the court of appeals issued its deci- 
sion affirming the district court judgment. In light of that decision, 
the government moved the district court to stay the hearing set 
for April 19 on the matter of INS’s revocation of respondent’s 
release, and the district court granted that motion. 

8 The court of appeals rejected the government’s argument 
that the constitutional question was answered by the Ninth Cir- 
cuit’s en banc decision in Barrera-Echavarria v. Rison, 44 F.3d 
1441, cert. denied, 516 U.S. 976 (1995), and this Court’s decision in 
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). 
The court distinguished those cases on the ground that they in- 
volved excludable aliens, i.e. aliens who had not entered the coun- 
try, rather than aliens who already entered the country and who, 
the court reasoned, have greater constitutional rights even after a 
final order of removal is entered against them. Pet. App. 14a-22a. 
The court noted that the Fifth Circuit, in resolving the constitu- 
tional question in Zadvydas v. Underdown, 185 F.3d 279 (1999), 

14 

to conclude that Congress intended to authorize what it 
termed “indefinite detention” in the absence of a clear 
statement to that effect, id. at 25a; because the court 
believed that reading a “reasonable time” limitation 
into Section 1231(a)(6) would be consistent with the 
Ninth Circuit’s interpretation in the 1900s and 1930s of 
a differently worded detention provision in the Immi- 
gration Act of 1917, ch. 29, 39 Stat. 874, id. at 26a-29a; 
and because that interpretation is, in the court’s view, 
more “consonant with international law,” id. at 11a, 29a- 
31a. Ibid. 

The court of appeals then concluded that there is no 
reasonable likelihood that the INS will be able to 
remove respondent to Cambodia “[i]n the absence of a 
repatriation agreement, extant or pending.” Pet. App. 
32a. Therefore, under the court’s ruling, the INS was 
no longer authorized to detain respondent. Ibid.9 

SUMMARY OF ARGUMENT 

The Attorney General is authorized by 8 U.S.C. 
1231(a)(6) (Supp. IV 1998) to detain an alien beyond the 
statutory removal period if the alien, like respondent, 
cannot be removed immediately from the country and 
the Attorney General has determined that the alien 
would pose a risk of flight or danger to the community 

cert. granted, 121 S. Ct. 297 (2000), had concluded that an alien un- 
der a final order of removal stands on essentially the same footing 
as an excludable alien. Pet. App. 20a n.23. The court of appeals 
declined to adopt that approach, however, and decided, instead, to 
avoid the constitutional question by its statutory construction. 
Ibid. 

9 On June 2, 2000, the court of appeals denied rehearing and 
rehearing en banc. Although an active judge requested a vote on 
whether to rehear the matter en banc, the matter failed to receive 
a majority of the votes of active judges in favor of en banc 
consideration. Pet. App. 62a-63a. 

15 

if released. The court of appeals’ holding that the 
Attorney General’s authority to detain aliens under 
Section 1231(a)(6) is limited to an unspecified “reason- 
able time” beyond the removal period is contrary to the 
text of Section 1231(a)(6), the structure of the Immi- 
gration and Nationality Act (INA), 8 U.S.C. 1101 et 
seq., the statutory history of the INA’s detention provi- 
sions, and the Attorney General’s authoritative 
interpretation of the Act, which is entitled to deference. 
In particular, the court of appeals’ ruling that, in the 
case of an alien who cannot be removed in the rea- 
sonably foreseeable future, the “reasonable time” limi- 
tation mandates the release of the alien immediately 
upon expiration of the 90-day removal period—despite 
a determination by the Attorney General that the alien 
poses a risk to the community if released—cannot be 
reconciled with the manifest intent of Congress that 
dangerous criminal aliens not be released back into the 
community and that the Attorney General be vested 
with authority to determine which criminal aliens may 
safely be released after the 90-day removal period has 
expired. 

A. The plain language of Section 1231(a)(6) provides 
that certain aliens, including aggravated felons and 
aliens who are determined by the Attorney General to 
pose a risk to the community if released, “may be de- 
tained beyond the removal period” by the Attorney 
General. The INA does not place a limit on the length 
of time beyond the removal period that such an alien 
may be detained. Section 1231(a)(6) instead leaves to 
the discretion of the Attorney General the decision 
whether to continue to detain an alien in such circum- 
stances and, if so, for how long. The text of the INA 
refutes the court of appeals’ assumption that Congress 
intended to place limits on post-removal-period deten- 
tion of aliens who cannot be removed immediately due 

16 

to the refusal of the designated countries to accept their 
return. In the provision of the INA immediately follow- 
ing Section 1231(a)(6), Congress expressly provided for 
such aliens to be exempted from the mandatory bar to 
the granting of work authorization to aliens who have 
been ordered removed. See 8 U.S.C. 1231(a)(7) (Supp. 
IV 1998). If Congress had intended to create a compa- 
rable exception for such aliens from the Attorney 
General’s detention authority under Section 1231(a)(6), 
Congress would have expressly so provided in similar 
language. 

B. The other provisions of the INA governing deten- 
tion of criminal aliens during the other phases of the 
removal process, i.e., during the pendency of removal 
proceedings (8 U.S.C. 1226(c) (Supp. IV 1998)) and 
during the statutory 90-day removal period (8 U.S.C. 
1231(a)(2) (Supp. IV 1998), were enacted contemporane- 
ously with Section 1231(a)(6) as part of the Illegal 
Immigration Reform and Immigrant Responsibility Act 
of 1996 (IIRIRA), and establish that Congress intended 
for mandatory detention of criminal aliens to be the 
general rule. To interpret the exception in Section 
1231(a)(6) to that general rule of mandatory detention 
as a provision for mandatory release of a criminal alien 
such as respondent at any time, let alone immediately 
upon expiration of the 90-day removal period, would 
undermine one of the central objectives of IIRIRA. 

C. Interpreting Section 1231(a)(6) to vest the Attor- 
ney General with the authority to detain criminal aliens 
in respondent’s position beyond the 90-day removal 
period is consistent with the history of the predecessor 
statutes governing detention of criminal aliens. More- 
over, the legislative evolution of the provision that 
became Section 1231(a)(6) confirms that Congress did 
not intend to require the release by the Attorney 

17 

General of a criminal alien under a final removal order 
who is determined to pose a risk to the community. 

D. If there is any remaining doubt about the scope of 
the Attorney General’s authority under Section 
1231(a)(6), it is resolved by the principle that deference 
is owed by the courts to the Attorney General’s inter- 
pretation of the INA. The circumstances confronting 
the Attorney General when the removal of a criminal 
alien cannot be effectuated because of the recalcitrance 
of another nation present the very type of serious 
questions affecting international relations and foreign 
policy that call for deference to the political Branches. 
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 
206 (1953). The Attorney General’s interpretation un- 
doubtedly constitutes a reasonable construction of 
Section 1231(a)(6), and therefore should be sustained by 
this Court. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 
(1999). 

E. The court of appeals erred in construing Section 
1231(a)(6) to bar detention of respondent in order to 
avoid what it believed to be a serious constitutional 
question. The constitutional-doubt canon cannot be 
applied to override the clear intent of Congress, as 
reflected in the text of Section 1231(a)(6). Nor would 
application of that canon be consistent with Congress’s 
clear intent that deportable criminal aliens such as 
respondent be treated the same as inadmissible aliens 
under Section 1231(a)(6). As the court of appeals ac- 
knowledged (Pet. App. 17a-18a), there can be no sug- 
gestion that Congress intended to mandate the release 
of dangerous inadmissible aliens after expiration of the 
removal period because it is well established, under 
Mezei, that an inadmissible alien may be subject to 
long-term detention when he cannot be removed in the 
reasonably foreseeable future. And Section 1231 is not 
susceptible to a constitutional doubt interpretation 

18 

analogous to that employed in United States v. 
Witkovich, 353 U.S. 194 (1957) (on which the court of 
appeals relied), because, unlike the statute at issue 
there, Section 1231(a)(6) specifically provides that, 
when making a determination whether to detain an 
alien beyond the removal period, the Attorney General 
may consider not only the likelihood that the alien will 
comply with the removal order, but also the risk the 
alien poses to the community if released. Finally, the 
court of appeals’ substantive due process concerns 
about respondent’s continued detention were un- 
founded because respondent’s detention is not indefi- 
nite in light of the Attorney General’s administrative 
review procedures and the ongoing international 
negotiations with the designated country of removal, 
see Zadvydas v. Underdown, 185 F.3d 279, 291, 294 (5th 
Cir. 1999), cert. granted, 121 S. Ct. 297 (2000), and be- 
cause, as an alien under a final order of removal, 
respondent is no longer a lawful permanent resident 
and is properly treated in the same manner as an 
excludable alien with respect to the constitutionality of 
his detention pending removal. 

ARGUMENT 

SECTION 1231(a)(6) OF TITLE 8 AUTHORIZES THE 
ATTORNEY GENERAL TO DETAIN AN ALIEN 
BEYOND THE STATUTORY REMOVAL PERIOD IF 
THE ALIEN CANNOT BE REMOVED IMMEDIATELY 
FROM THE COUNTRY BUT THE ATTORNEY GEN- 
ERAL HAS DETERMINED THAT THE ALIEN WOULD 
POSE A RISK OF FLIGHT OR DANGER TO THE 
COMMUNITY IF RELEASED 

The Immigration and Nationality Act (INA), 8 U.S.C. 
1101 et seq., provides that certain aliens who are 
inadmissible to the United States (8 U.S.C. 1182(a) 
(Supp. IV 1998)), and certain already admitted aliens 

19 

who are deportable from the United States (8 U.S.C. 
1227 (Supp. IV 1998)), are to be removed from the coun- 
try. 

10 With exceptions inapplicable here, the inadmis- 
sibility or deportability of an alien and the alien’s 
eligibility for any relief from removal are determined in 
removal proceedings conducted by immigration judges 
and the Board of Immigration Appeals in the Depart- 
ment of Justice’s Executive Office of Immigration Re- 
view, pursuant to regulations of the Attorney General. 
8 U.S.C. 1228, 1229a (Supp. IV 1998); 8 C.F.R. 3.0-3.65. 

11 

Whether an alien is detained in the custody of the INS 
during the pendency of those removal proceedings is 
governed by 8 U.S.C. 1226 (Supp. IV 1998). 

Upon completion of removal proceedings and the 
entry of a final removal order, the Attorney General is 
directed by 8 U.S.C. 1231(a)(1)(A) (Supp. IV 1998) to 
remove the alien from the United States within a 
period of 90 days, which is termed the “removal 

10 Prior to enactment of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104- 
208, Div. C, § 301, 110 Stat. 3009-575, the INA referred to “in- 
admissible” aliens as “excludable” aliens (e.g., 8 U.S.C. 1182 (1994)), 
and to “removal” proceedings as “exclusion” or “deportation” pro- 
ceedings (e.g., 8 U.S.C. 1227, 1252 (1994)). 

11 The removability of an alien who is not a lawful permanent 
resident and who has been convicted of an aggravated felony may 
be determined in administrative proceedings conducted by an offi- 
cer of the INS rather than an immigration judge and the BIA. See 
8 U.S.C. 1228(b) (Supp. IV 1998); 8 C.F.R. 238.1(b). Similarly, cer- 
tain arriving aliens may be ordered removed by an INS officer in 
expedited removal proceedings without further hearing or review. 
See 8 U.S.C. 1225(b) (Supp. IV 1998); 8 C.F.R. 235.3(b). Finally, 
under 8 U.S.C. 1228(c) (Supp. IV 1998), a federal district court may 
enter an order of removal in a criminal prosecution at the time of 
sentencing, if such an order has been requested by the United 
States Attorney with the concurrence of the Commissioner of the 
INS. 

20 

12 Whether an alien is detained in the custody 
of the INS during that removal period is governed by a 
separate provision of the INA, 8 U.S.C. 1231(a)(2) 
(Supp. IV 1998). 

In certain cases, the Attorney General may be unable 
to effectuate an alien’s removal during the 90-day re- 
moval period. Whether an alien is detained in the cus- 
tody of the INS beyond the removal period is governed 
by yet another provision of the INA, 8 U.S.C. 1231(a)(6) 
(Supp. IV 1998). This case concerns the scope of the 
Attorney General’s detention authority under Section 
1231(a)(6). The court of appeals held that if there is not 
a reasonable likelihood that an alien will be removed to 
another country in the reasonably foreseeable future, 
Section 1231(a)(6) requires the Attorney General to 
release the alien immediately upon expiration of the 
statutory 90-day removal period—even if the Attorney 
General has determined that the alien would pose a 
danger to the community or risk of flight if released, 
and even though the alien’s continued detention is 
subject to periodic review under procedures specifically 
tailored to evaluate the alien’s situation on an indi- 
vidualized basis. That holding is contrary to the text of 
Section 1231(a)(6), the structure of the INA, the statu- 
tory history of the INA’s detention provisions, and the 
Attorney General’s authoritative interpretation of the 

12 The 90-day removal period begins on the latest of: “(i) [t]he 
date the order of removal becomes administratively final”; “(ii) [i]f 
the removal order is judicially reviewed and if a court orders a stay 
of the removal of the alien, the date of the court’s final order”; or 
“(iii) [i]f the alien is detained or confined (except under an immi- 
gration process), the date the alien is released from detention or 
confinement.” 8 U.S.C. 1231(a)(1)(B) (Supp. IV 1998). The re- 
moval period is extended beyond 90 days if the alien fails or 
refuses to make timely application in good faith for the documents 
necessary to his departure. 8 U.S.C. 1231(a)(1)(C) (Supp. IV 1998). 

period.” 

21 

Act, which is entitled to deference under INS v. 
Aguirre-Aguirre, 526 U.S. 415, 425 (1999). 

A. The Plain Language Of Section 1231(a)(6) Vests The 

Attorney General With The Authority To Detain 

Aliens Such As Respondent Beyond The Removal 

Period 

1. Section 1231(a)(6) of Title 8 of the United States 
Code provides that “[a]n alien ordered removed” who is 
“inadmissible under section 1182,” “removable under 
section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4),” or “who 
has been determined by the Attorney General to be a 
risk to the community or unlikely to comply with the 
order of removal,” “may be detained beyond the re- 
moval period.” 8 U.S.C. 1231(a)(6) (Supp. IV 1998) (em- 
phasis added). 

13 The plain language of Section 
1231(a)(6) thus vests the Attorney General with the 
authority to continue an alien in detention beyond the 
removal period if the alien falls within one of following 
categories: the alien is inadmissible on any basis (Sec- 
tion 1182); deportable because he violated his nonimmi- 
grant status or a specially imposed condition of entry 
(Section 1227(a)(1)(C)); deportable because he was 
convicted of a specified criminal offense (Section 
1227(a)(2)); deportable because he engaged in activity 
that endangered the public safety or national security 

13 Respondent is removable under 8 U.S.C. 1227(a)(2)(A)(iii) 
(Supp. IV 1998) because he was convicted of an aggravated felony. 
That conviction in itself therefore furnishes a basis for the Attor- 
ney General to exercise her discretionary authority under Section 
1231(a)(6) to detain respondent beyond the removal period. The 
Attorney General’s determination to continue respondent in deten- 
tion under Section 1231(a)(6) also rested, however, on her deter- 
mination that he would pose a risk to the community if released. 
See Pet. App. 87a (INS headquarters review committee unable to 
conclude that respondent would remain nonviolent and not violate 
the conditions of supervision if released). 

22 

or related conduct (Section 1227(a)(4)); or is determined 
by the Attorney General to pose a risk to the commu- 
nity or to be unlikely to comply with the removal order. 

The INA contains no language otherwise limiting the 
Attorney General’s authority to detain an alien after 
expiration of the removal period. In particular, the Act 
does not place a limit on the length of time beyond the 
removal period that an alien who falls within one of the 
Section 1231(a)(6) categories may be detained. To the 
contrary, by using the term “may,” Congress commit- 
ted to the discretion of the Attorney General the ulti- 
mate decision whether to continue to detain such an 
alien and, if so, in what circumstances and for how long. 
United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The 
word ‘may,’ when used in a statute, usually implies 
some degree of discretion.”). 

Moreover, the text of Section 1231(a)(6) refutes the 
court of appeals’ conclusion that whether or not the 
alien will actually be removed in the immediate future 
is dispositive on the question of continued detention in a 
case such as this. Section 1231(a)(6) makes clear that, in 
deciding whether to continue an alien in detention 
beyond the 90-day removal period, the Attorney Gen- 
eral must take into account not only the effect that an 
alien’s release would have on his availability for 
removal, but also whether the alien would pose “a risk 
to the community.” 8 U.S.C. 1231(a)(6) (Supp. IV 1998). 
If the Attorney General determines that an alien would 
pose such a risk if released, the Attorney General is 
unequivocally granted the authority to detain the alien 
beyond the removal period on that ground alone, with- 
out regard to the likelihood that he will comply with an 
order of removal and thus actually be removed. Con- 
gress’s decision to vest that authority in the Attorney 
General is consistent with the recognition by this Court 
that detention of dangerous aliens furthers not only the 

23 

government’s interest in ensuring the alien’s availabil- 
ity for removal, but also its distinct interest in protect- 
ing the community from aliens who are likely to cause 
harm if released. See Carlson v. Landon, 342 U.S. 524, 
538 (1952) (“Detention is necessarily a part of this 
deportation procedure. Otherwise aliens arrested for 
deportation would have opportunities to hurt the 
United States during the pendency of deportation 
proceedings.”). 

2. There is nothing in the text of Section 1231(a)(6) 
or any other provision of the INA to support the court 
of appeals’ interpretation of Section 1231(a)(6) to re- 
quire the release of aliens after expiration of an un- 
specified “reasonable time” beyond the 90-day removal 
period. Pet. App. 3a, 10a-11a. And there certainly is no 
textual support for mandating, as the court of appeals 
did (id. at 3a-4a, 11a), the release of an alien immedi- 
ately upon expiration of the 90-day removal period if 
there is not a reasonable likelihood that he will be 
removed in the reasonably foreseeable future—espe- 
cially where the Attorney General has determined that 
the alien poses a risk to the community or would be 
unlikely to comply with the order of removal. 

By “reading an implicit ‘reasonable time’ limitation 
into the statute” (Pet. App. 11a), the court of appeals 
ignored this Court’s admonition to resist an interpreta- 
tion that “read[s] words or elements into a statute that 
do not appear on its face.” Bates v. United States, 522 
U.S. 23, 29 (1997). In rejecting the same “reasonable 
time” argument, the Tenth Circuit emphasized that 
Section 1231(a)(6) “expressly allows for continued de- 
tention beyond the removal period with no time limit 
placed on the duration of such detention.” Duy Dac Ho 

v. Greene, 204 F.3d 1045, 1057 (2000). That court 
correctly declined to “substitute its judgment for that 
of Congress by reading into the statute a time limit that 

24 

is not included in the plain language of the statute.” 
Ibid. It concluded: 

The unambiguous language of 8 U.S.C. § 1231(a)(6) 
and the absence of an express time limit on the 
Attorney General’s authority to continue to detain 
leads this court to conclude that Congress intended 
to and expressly did authorize the Attorney General 
to indefinitely detain certain removable aliens 

* * * who cannot be removed within the ninety- 
day removal period. 

Ibid.14 

The Ninth Circuit nevertheless carved out an excep- 
tion to the Attorney General’s post-removal-period 
detention authority under Section 1231(a)(6) for aliens 

14 In construing Section 1231(a)(6) to require the INS to release 
an alien in respondent’s position immediately upon expiration of 
the 90-day removal period, the Ninth Circuit relied (Pet. App. 26a- 
29a) on several decisions by that court, rendered in 1932 or earlier, 
that arose under the Immigration Act of 1917 and that indicated 
that an alien should be discharged from custody if he was not 
removed within a reasonable period of time. As the court of 
appeals itself pointed out, however, those decisions “did not inter- 
pret a statute exactly like the one consider[ed]” here. Id. at 28a. 
Indeed, the earlier statute involved in those cases “provided sim- 
ply that deportable aliens should be ‘taken into custody and 
deported.’ ” Id. at 26a. That statute did not contain the language 
that is now found in Section 1231(a)(6) explicitly authorizing deten- 
tion “beyond the removal period.” Ibid. Moreover, as the court of 
appeals also acknowledged (id. at 28a), those earlier cases “do not 
make their reasoning entirely explicit.” And all but one of the 
cases was decided before this Court’s decision in Shaughnessy v. 
United States ex rel. Mezei, 345 U.S. 206 (1953), discussed at pp. 
46, 49, infra. The one case decided after Mezei involved a question 
about the ongoing validity of a deportation order, not a detention 
issue; it discussed the earlier Ninth Circuit decisions only in dic- 
tum, and did not cite Mezei. 

See Spector v. Landon, 209 F.2d 481 

(9th Cir. 1954). 

25 

who cannot be removed in the reasonably foreseeable 
future, regardless of the risk of flight or danger to the 
community posed by the alien. The court treated the 
prospect that the alien might not be removed in the 
foreseeable future as a possibility not contemplated by 
Congress, and one that the court assumed would have 
led Congress to place limits on post-removal-period 
detention. The court therefore chose to read into Sec- 
tion 1231(a)(6) a prohibition on the continued detention 
of aliens in that situation. See Pet. App. 11a (court’s 
interpretation permitted it to avoid assuming that 
Congress intended to allow continued detention of 
aliens who cannot be removed). Even if we assume, ar- 
guendo, that the court could insert a statutory prohibi- 
tion that appears nowhere in the Act itself, the pre- 
dicate for the court’s approach is erroneous. It is clear 
from the text of the Act that Congress specifically con- 
templated that other countries might refuse to accept 
the return of an alien who has been ordered removed. 
And it is also clear from the text of the Act that when 
Congress wanted to treat such aliens differently, it did 
so explicitly. 

Section 1231(a)(7)—the subsection immediately fol- 
lowing Section 1231(a)(6)—provides as a general rule 
that no alien ordered removed is eligible to receive 
authorization to work in the United States. However, 
Congress enacted an exception to that ineligibility for 
situations in which the Attorney General specifically 
finds that either “the alien cannot be removed due to 
the refusal of all countries designated by the alien or 
under [Section 1231] to receive the alien,” or “the re- 
moval of the alien is otherwise impracticable or con- 
trary to the public interest.” 8 U.S.C. 1231(a)(7) (Supp. 
IV 1998). Certainly, if Congress had intended that the 
Attorney General not have the discretion under Section 
1231(a)(6) to detain beyond the initial 90-day removal 

26 

period those aliens who cannot be removed due to the 
refusal of other countries to receive them, Congress 
would have expressly so provided by carving out an 
exception for such aliens in Section 1231(a)(6) in the 
same manner that it expressly carved out an exception 
for such aliens from the mandatory bar to the granting 
of work authorizations in Section 1231(a)(7). 

15 

B. Other Statutory Provisions Governing Detention Of 

Criminal Aliens Confirm That Congress Did Not 

Mandate The Release Of Criminal Aliens Who Pose A 

Risk Of Flight Or Danger To The Community 

When Congress enacted Section 1231(a)(6) in 1996 as 
part of IIRIRA (§ 305(a)(3), 110 Stat. 3009-598) to 
govern the detention of criminal aliens beyond the 
removal period, Congress enacted two other provisions 
to govern the detention of criminal aliens during earlier 
phases of the removal process. Those other detention 
provisions establish that Congress’s intent when 
enacting IIRIRA was for detention of criminal aliens to 
be the general rule. The exception in Section 1231(a)(6) 
allowing the Attorney General to release criminal aliens 
in certain circumstances was adopted only for criminal 
aliens who are not removed within the statutory 90-day 
removal period. To interpret that exception to a gen- 
eral rule of mandatory detention as a provision for 
mandatory release of a criminal alien such as respon- 

15 Other provisions of IIRIRA likewise specifically refer to the 
situation in which another country will not accept the return of its 
nationals. See IIRIRA § 303(b)(3)(B)(ii), 110 Stat. 3009-587 (dis- 
cussed at note 23, infra), and IIRIRA § 307(a), 110 Stat. 3009-614 
(discussed at note 25, infra). Cf. 8 U.S.C. 1231(a)(1)(C) (Supp. IV 
1998) (expressly addressing situation in which alien is not removed 
because alien fails or refuses to make timely application for docu- 
ments necessary to removal, and providing for extension of re- 
moval period (and thus mandatory detention of criminal aliens) in 
that situation). 

27 

dent, despite a determination by the Attorney General 
that the alien poses a risk to the community, would 
undermine one of the central objectives of IIRIRA. 

Under 8 U.S.C. 1226(c) (Supp. IV 1998) (enacted in 
IIRIRA § 303(a), 110 Stat. 3009-585), certain criminal 
aliens (including aliens like respondent who have been 
convicted of an aggravated felony) are subject to man- 
datory detention during the pendency of the proceed- 
ings to determine whether they are to be removed. 

16 

Section 1226(c)(1) provides that the Attorney General 
shall take covered criminal aliens into custody upon 
their release from imprisonment under their criminal 
sentences. See App., infra, 2a. The authority of the 
Attorney General to release a criminal alien during the 
pendency of removal proceedings is severely restricted. 
Only aliens whose release is necessary to protect a 
person involved in a major criminal investigation are 
eligible for release. Even then, an alien may not be 
released unless he “satisfies the Attorney General that 
[he] will not pose a danger to the safety of other 
persons or of property and is likely to appear for any 
scheduled proceeding.” 8 U.S.C. 1226(c)(2) (Supp. IV 
1998). Congress also specified that, when making a re- 
lease determination under that provision, the Attorney 

16 The mandatory detention provision in Section 1226(c) applies 
to aliens who are inadmissible by reason of having committed 
an offense covered in Section 1182(a)(2) (criminal grounds); 
inadmissible under Section 1182(a)(3)(B) (terrorist activities); 
deportable by reason of having committed an offense covered 
by Section 1227(a)(2)(A)(i) (crimes of moral turpitude, but only 
if a sentence of at least one year imprisonment was imposed), 
Section 1227(a)(2)(A)(ii) (multiple criminal convictions), Section 
1227(a)(2)(A)(iii) (aggravated felony), Section 1227(a)(2)(B) (con- 
trolled substance offenses), Section 1227(a)(2)(C) (certain firearm 
offenses), or Section 1227(a)(2)(D) (miscellaneous other crimes); or 
deportable under Section 1227(a)(4)(B) (terrorist activities). 

28 

General must consider the severity of the alien’s 
offense. Ibid. After removal proceedings are concluded 
and a removal order becomes final, all criminal aliens 
are again subject to mandatory detention during the 
statutory 90-day removal period. 8 U.S.C. 1231(a)(2) 
(Supp. IV 1998) (enacted in IIRIRA § 305(a)(3), 110 
Stat. 3009-598); see App., infra, 4a. 

17 Section 1231(a)(2) 
generally provides that the Attorney General shall de- 
tain an alien during the removal period, and specifies 
that, “[u]nder no circumstance during the removal pe- 
riod shall the Attorney General release” a criminal 
alien. 8 U.S.C. 1231(a)(2) (Supp. IV 1998). 

When read as part of this broader statutory context, 
it is evident that Section 1231(a)(6) constitutes only a 
relaxation by Congress of the rule of mandatory deten- 
tion of all criminal aliens for those cases in which the 
alien’s removal is delayed beyond the statutory 90-day 
removal period. At that point, as the text of Section 
1231(a)(6) makes clear, the Attorney General continues 
to have authority to detain the alien; that authority 
simply becomes discretionary rather than mandatory. 
Furthermore, in contrast to Sections 1226(c) and 
1231(a)(2), under which the termination of the applic- 
able detention authority is demarcated by a particular 
event (under Section 1226(c), by the completion of re- 
moval proceedings, and under Section 1231(a)(2), by the 
expiration of the statutory removal period), Section 
1231(a)(6) does not set a time limit on the Attorney 
General’s authority to continue to detain the alien. 
Congress’s grant to the Attorney General of authority 

17 The mandatory-detention provision of Section 1231(a)(2) 
applies to aliens who have been found inadmissible under Section 
1182(a)(2) (all criminal and related grounds) or 1182(a)(3)(B) 
(terrorist activities), or deportable under Section 1227(a)(2) (all 
criminal offenses) or 1227(a)(4)(B) (terrorist activities). 

29 

to release criminal aliens at all represented a concession 
to the fact that Section 1231(a)(6) could result in pro- 
longed detention, and reflected its willingness to place 
the responsibility on the Attorney General to exercise 
individualized judgment about whether to release a 
particular criminal alien who cannot be removed within 
the 90-day removal period. It would run contrary to 
the central thrust of all of the IIRIRA detention provi- 
sions to suggest that Congress intended not only to al- 
low but to mandate release of dangerous criminal aliens 
at any time, let alone immediately upon expiration of 
the 90-day removal period, as the court of appeals 
ordered. 

18 

C. The Statutory History Of Section 1231(a)(6) Further 

Demonstrates That The Attorney General Has 

Statutory Authority To Detain Aliens In Respondent’s 

Position 

1. The Predecessor Statutes To IIRIRA Support An 

Interpretation Of Section 1231(a)(6) That Author- 
izes The Attorney General To Detain Criminal 

Aliens Beyond The Statutory Removal Period 

An interpretation of Section 1231(a)(6) that allows 
continued detention of criminal aliens is “also consonant 
with the history of evolving congressional regulation in 
this area.” Dunn v. Commodity Futures Trading 

18 At the time respondent filed his habeas corpus petition on 
February 2, 1999, claiming that his continued detention was uncon- 
stitutional, he had been detained under the authority of Section 
1231(a)(6) for less than ten days. During the statutory 90-day 
removal period, which expired on January 24, 1999, respondent’s 
detention was governed by Section 1231(a)(2); and prior to the 
time a final order of removal was entered, his detention was gov- 
erned by IIRIRA’s transitional period custody rules. See p. 4, 
supra. By the time of the district court’s order granting him 
habeas corpus relief, respondent had been detained under the 
authority of Section 1231(a)(6) for eight months. 

30 

Comm’n, 519 U.S. 465, 475 (1997). Congress’s decision 
when it enacted IIRIRA in 1996 to allow the Attorney 
General to prevent the release back into the community 
of dangerous criminal aliens under final orders of 
removal was a culmination of various congressional 
actions over the preceding years to protect the com- 
munity from such aliens. 

As we explained in our certiorari petition (at 18-22), 
since at least 1990, Congress has unequivocally ex- 
empted the detention of aggravated felons following 
entry of a final order of deportation from any statutory 
time limit that applied generally to the detention of 
other aliens. Indeed, Congress has consistently al- 
lowed, and at times mandated, that the Attorney Gen- 
eral continue to detain aggravated felons. By contrast, 
nothing in the last decade of amendments to the INA 
remotely suggests that Congress intended that, rather 
than having six months to effectuate deportation with 
varying degrees of authority to detain criminal aliens 
thereafter, as under prior law, the Attorney General 
would now be subject to a judicially imposed limitation 
of only a “reasonable time” beyond 90 days, which in 
this case was deemed to be no time at all. 

Before the enactment of IIRIRA, the provisions of 
the INA governing the Attorney General’s detention of 
an alien who was subject to a final order of deportation 
were found in Section 1252 of Title 8, which had been 
enacted in 1952 as Section 242 of the INA. 66 Stat. 208. 
Initially, Section 1252(c) and (d) provided that the 
Attorney General had a six-month period following 
entry of a final order of deportation during which to 
effect an alien’s deportation. During that period, the 
alien could be detained or released at the discretion of 
the Attorney General. 8 U.S.C. 1252(c) (1982). After 
expiration of that period, “[i]f deportation ha[d] not 
been practicable, advisable, or possible, or departure of 

31 

the alien from the United States under the order of 
deportation ha[d] not been effected,” the alien became 
“subject to such further supervision and detention 
pending eventual deportation” as was authorized in 
Section 1252. 8 U.S.C. 1252(c) (1982). If an alien’s final 
order of deportation was outstanding for more than six 
months, the alien was, “pending eventual deportation, 

* * * subject to supervision under regulations pre- 
scribed by the Attorney General.” 8 U.S.C. 1252(d) 
(1982). 

In 1988, Congress enacted a provision directing the 
Attorney General to take into custody any alien con- 
victed of an aggravated felony upon completion of his 
criminal sentence, and not to release the aggravated 
felon from custody, notwithstanding 8 U.S.C. 1252(a)(1) 
(1988), which otherwise permitted the discretionary 
release of aliens while deportation proceedings were 
pending. See Anti-Drug Abuse Act of 1988, Pub. L. No. 
100-690, § 7343(a), 102 Stat. 4470; 8 U.S.C. 1252(a)(2) 
(1988). In 1990, Congress amended that mandatory- 
detention provision to specify, inter alia, that it also 
applied notwithstanding subsections (c) and (d) of Sec- 
tion 1252—the provisions that otherwise generally gov- 
erned an alien’s detention after he became subject to a 
final order of deportation. The 1990 amendment also 
added a statutory exception to the mandatory-deten- 
tion provision that required the release on bond or 
other conditions of an aggravated felon who had been 
lawfully admitted for permanent residence, but only if 
the Attorney General determined that the alien was not 
a threat to the community and was likely to appear for 
immigration hearings. See Immigration Act of 1990, 
Pub. L. No. 101-649, § 504(a), 104 Stat. 5049; 8 U.S.C. 
1252(a)(2)(A) and (B) (1988 & Supp. II 1990). 

In 1991, Congress amended the statutory exception 
to the provision for mandatory detention of aggravated 

32 

felons to specify that the Attorney General could not 
release any lawfully admitted alien who was an aggra- 
vated felon, “either before or after a determination of 
deportability,” unless the alien demonstrated “to the 
satisfaction of the Attorney General that such alien is 
not a threat to the community and that the alien is 
likely to appear before any scheduled hearings.” Mis- 
cellaneous and Technical Immigration and Naturaliza- 
tion Amendments of 1991, Pub. L. No. 102-232, 
§ 306(a)(4), 105 Stat. 1751; 8 U.S.C. 1252(a)(2)(B) (Supp. 
III 1991); 8 U.S.C. 1252(a)(2)(B)(1994); see Duy Dac Ho 

v. Greene, 204 F.3d at 1056 n.8. 

19 

On April 24, 1996, Congress again amended 8 U.S.C. 
1252(a)(2) (1994) through enactment of Section 440(c) of 
the Antiterrorism and Effective Death Penalty Act of 
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1277. 
That amendment expanded the group of criminal aliens 
subject to mandatory detention beyond aggravated 
felons, to include aliens convicted of other specified 
crimes. Ibid. At the same time, the amendment elimi- 
nated the provision allowing the Attorney General to 
release criminal aliens, even those lawfully admitted 
aliens who she determined would not pose a threat of 
danger to the community or flight if released. Ibid. 
Thus, as the court of appeals recognized (see Pet. App. 
25a n.25), under former Section 1252(a)(2), as amended 
by AEDPA, 110 Stat. 1277, respondent would have 
been subject to mandatory detention following entry of 
a final order of deportation for as long as Cambodia 
refused to accept his return. 

19 The 1990 amendment only permitted the release of an aggra- 
vated felon who had been lawfully admitted for permanent resi- 
dence. The 1991 amendment applied to any alien who had been 
lawfully admitted. 

33 

It is against that backdrop that Congress, barely five 
months after it had enacted AEDPA, enacted the pro- 
visions of IIRIRA governing the detention of criminal 
aliens. While those provisions continue to mandate the 
detention of a criminal alien while removal proceedings 
are pending and during the 90-day removal period 
following entry of a final removal order, Section 
1231(a)(6) now grants the Attorney General discretion 
to release a criminal alien after that date. As we explain 
below, there is no evidence whatsoever to suggest that, 
in enacting Section 1231(a)(6), Congress intended—in 
stark departure from the mandatory detention provi- 
sion in AEDPA and indeed the entire thrust of its 
approach to the detention of criminal aliens over the 
course of the preceding decade—not only to permit but 
to require the Attorney General to release an aggra- 
vated felon who she determines would pose a danger to 
the community or a flight risk if released. To the con- 
trary, the legislative history confirms that Section 
1231(a)(6) is correctly interpreted, consistent with the 
congressional actions that preceded it, to ensure that 
the Attorney General retains the authority to detain 
such aliens, even when the country to which the alien 
has been ordered removed has declined to accept his 
return. 

2. The Legislative History Of Section 1231(a)(6) 

Confirms The Attorney General’s Statutory 

Authority To Detain Aliens In Respondent’s 

Position 

The legislative evolution of the provision that became 
Section 1231(a)(6) confirms that Congress did not 
intend to require the release by the Attorney General 
of a criminal alien under a final removal order who is 
determined to pose a risk of flight or danger to the 
community. 

34 

On June 22, 1995, a bill was introduced in the House 
of Representatives to reform immigration policy in 
several specific areas, including “removal of illegal and 
criminal aliens.” See H.R. Rep. No. 879, 104th Cong., 
2d Sess. 105 (1997) (Report on the Activities of the 
Committee on the Judiciary during the One Hundred 
Fourth Congress). 

20 The bill‚—H.R. 1915—provided, 
inter alia, for “more stringent standards for the release 
of aliens (particularly aliens convicted of aggravated 
felonies) during and after removal proceedings.” H.R. 
1915, 104th Cong., 1st Sess. § 300(3), at 36 (as intro- 
duced June 22, 1995). It mandated the detention of 
aliens during the post-final-order removal period, but 
authorized release of aliens on bond and supervision if 
the Attorney General found that there was insufficient 
detention space. Id. § 305(3), at 82. It further provided 
that, upon expiration of the removal period, deportable 
aliens would be released on supervision (id. 
§ 305(3), at 82-83), but inadmissible aliens could be con- 
tinued in detention (ibid.) (“An alien ordered removed 
who is inadmissible under section [1182] may be 

20 Congressional consideration of proposals to ensure that crimi- 
nal aliens who are ordered removed do not return to the commu- 
nity arose out of a number of legislative proposals to amend the 
INA, based on recommendations made by the bipartisan Commis- 
sion on Immigration Reform in 1994 and 1995. The Commission 
was created by the Immigration Act of 1990, Pub. L. No. 101-649, 
104 Stat. 4978, chaired by former Representative Barbara Jordan, 
and was required “to report to Congress with analysis and recom- 
mendations regarding the implementation of and impact of U.S. 
immigration policy.” H.R. Rep. No. 879, 104th Cong., 2d Sess. 105- 
106 (1997). The Commission issued two major reports in 1994 and 
1995. Id. at 105. 

35 

detained beyond the removal period and, if released, 
shall be subject to [statutory] terms of supervision.”). 

21 

H.R. 1915 was intended, inter alia, to “impose[] 
greater accountability for the detention and removal of 
aliens at the close of the hearing process,” including by 
requiring “increased detention of aliens who are 
ordered removed.” H.R. Rep. No. 879, supra, at 108. 
The enhanced detention requirements were based on 
the fact that “[t]he Inspector General of the Depart- 
ment of Justice ha[d] found that the vast majority of 
aliens who are not detained at the close of deportation 
proceedings abscond and are not removed from the 
U.S., while the vast majority of those who are detained 
do depart the U.S.” Ibid. 

On August 4, 1995, the bill that ultimately became 
IIRIRA—H.R. 2202, 104th Cong., 1st Sess.—was intro- 
duced and referred to the full Judiciary Committee to 
be considered in lieu of H.R. 1915. See H.R. Rep. No. 
879, supra, at 118. On March 4, 1996, the Judiciary 
Committee reported the bill, as amended, to the House 
of Representatives. Id. at 120. It contained the same 
provisions for detention of criminal aliens that were in 
H.R. 1915. See H.R. Rep. No. 469, 104th Cong., 2d Sess. 
Pt. I, at 18-19, 25-26, 234 (1996). 

22 When the House 

21 H.R. 1915 also addressed detention pending removal proceed- 
ings. It provided for the detention of aggravated felons during 
that period unless the alien, inter alia, satisfied the Attorney Gen- 
eral that he would not pose a danger to the safety of other persons 
or property if released and, if the alien had not been lawfully 
admitted, was an alien who could not be removed because the 
designated country of removal would not accept him and who 
would likely appear for future proceedings, or was an alien whose 
release was necessary to a major criminal investigation. H.R. 
1915, supra, § 303, at 53-55. 

22 The Committee Report explained that the provision for de- 
tention of aliens after entry of a final removal order, or release on 

36 

considered the bill, it adopted further amendments not 
relevant here, and passed the bill on March 21, 1996. 
H.R. Rep. No. 879, supra, at 121; see 142 Cong. Rec. 
6012-6015 (1996). 

Less than one month later, however, on April 24, 
1996, Congress enacted another immigration reform 
law, AEDPA. As noted above (see p. 32, supra), Sec- 
tion 440(c) of AEDPA amended 8 U.S.C. 1252(a)(2) 
(1994) to mandate the detention of aggravated felons 
both prior to and following the entry of a final removal 
order. That provision originated as Section 303(e)(3) of 
a Senate bill, S. 735, 104th Cong., 1st Sess. 53-54 (as 
engrossed in Senate on June 7, 1995). Prior to AEDPA, 
Section 1252(a)(2) had provided for detention of deport- 
able aggravated felons both before and after a 

conditions to ensure their appearance, was a “significant departure 
from current law and practice, which often permit aliens who have 
final orders of deportation to remain in the U.S. indefinitely.” H.R. 
Rep. No. 469, supra, at 160. The Report further explained: 

Numerous factors are cited for this failure to deport: insuffi- 
cient detention space, lack of resources to apprehend aliens for 
deportation, and archaic procedures which provide advance 
notice to aliens of when they must report for deportation—a 
practice charitably characterized as a “run letter.” H.R. 2202 
specifically addresses all of these factors, by increasing deten- 
tion space (including the use of closed military facilities on a 
pilot basis), increasing the number of interior enforcement per- 
sonnel, including specifically detention and deportation 
officers, and, in this section, establishing procedures that will 
ensure that an order of removal is no longer a dead letter, but 
results in an actual physical removal of the alien. 

Ibid. The report then emphasized, however, that the “most critical 
factor in lax enforcement of deportation orders” was the release of 
an alien after entry of a final order without assurance of the alien’s 
availability when the INS is ready to remove him. Ibid. The 
provision for detention of aliens following entry of a final order was 
intended to resolve that problem. Id. at 160-161. 

37 

determination of deportability, unless the alien had 
been lawfully admitted to the United States and dem- 
onstrated to the satisfaction of the Attorney General 
that he was not a threat to the community and that he 
was likely to appear for any scheduled hearing. Section 
303(e)(3) of S. 735 expanded the category of criminal 
aliens subject to detention under former Section 
1252(a)(2) beyond aggravated felons, to include aliens 
convicted of other specified crimes. S. 735, supra, at 53- 

54. At the same time, it eliminated the provision allow- 
ing the Attorney General to release such aliens after 
expiration of the then six-month deportation period— 
including those aliens who had been lawfully admitted 
and who she determined would not pose a threat of 
danger to the community or flight if released. Ibid. 
During a floor debate on June 7, 1995, Senator Kennedy 
criticized Section 303(e) because 

it require[d] the Attorney General to detain all 
those in this broadened category of criminal aliens, 
with no allowance for those whose home countries 
will not or cannot take them back. This is the case 
today with Cuba, Vietnam, and Bosnia. In these 
cases, the Attorney General would be required to 
keep the alien in indefinite detention, even if the 
offense is relatively light and the Attorney General 
believes the alien would pose no danger to the 
community. 

This is a drastic and unnecessary expense to the 
taxpayer. It takes jail space and resources away 
from more pressing criminal enforcement. 

Under this provision, a Cuban refugee convicted of 
shoplifting in certain States could face life im- 
prisonment in an INS jail. 

38 

141 Cong. Rec. 15,068 (1995) (emphasis added). Despite 
Senator Kennedy’s objections, however, Section 303(e) 
was retained and ultimately enacted as Section 440(c) of 
AEDPA, 110 Stat. 1277. 

It was against that backdrop that consideration of 
H.R. 2202 was revived and IIRIRA ultimately was 
enacted. On May 2, 1996, the Senate passed H.R. 2202, 
but with an amendment substituting the text of another 
Senate immigration bill, S. 1664, 104th Cong., 2d Sess. 
(1996). S. 1664 would have amended 8 U.S.C. 1252(a)(2) 
in a manner somewhat similar to AEDPA, by broaden- 
ing the mandatory detention of deportable criminal 
aliens both during and after completion of deportation 
proceedings, and by limiting the Attorney General’s 
authority to release such aliens to instances involving 
law enforcement or national security needs. S. 1664, 
supra, § 164, at 130-131 (as introduced Apr. 10, 1996). 
After H.R. 2202 went to conference, however, the 
Senate receded (with modifications) to Section 305 of 
the bill as it passed the House, which contained the 
House bill’s provisions regarding detention of criminal 
aliens both during and after completion of the removal 
period. H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 
215-216 (1996). See also id. at 210-211 (Senate receding 
to House bill Section 303, with modifications, which 
contained provisions regarding detention of criminal 
aliens during pendency of removal proceedings). 

As modified in conference, Section 305 allowed, but 
did not require, the release on supervision of aliens who 
were ordered removed but were not removed during 
the removal period. H.R. Conf. Rep. No. 828, supra, at 
53-54, 215-216. At the same time, Section 305, as modi- 
fied in conference, expanded the provision in the bill 
allowing for detention of inadmissible aliens beyond 
the removal period to its current form that also allows 
for detention of certain deportable aliens beyond the 

39 

removal period, including aggravated felons and any 
alien who the Attorney General determines would pose 
a risk to the community or be unlikely to comply with a 
removal order if released. Id. at 54, 215-216. The 
Senate and the House agreed to the Conference Report 
and it was ultimately incorporated in an appropriations 
bill and signed into law on September 30, 1996. H.R. 
Rep. No. 879, supra, at 122. 

23 

IIRIRA’s change from the mandatory detention re- 
gime of AEDPA to a framework allowing (but not man- 
dating) release under 8 U.S.C. 1231(a)(6) (Supp. IV 
1998) upon expiration of the removal period essentially 
restored the Attorney General’s discretionary author- 
ity, under former 8 U.S.C. 1252(a)(2)(B) (1994), to re- 
lease certain criminal aliens, including aggravated 
felons, from detention after expiration of the removal 
period if the alien does not pose a threat to the com- 

23 Although IIRIRA Section 303(a) retained AEDPA’s manda- 
tory detention provision for criminal aliens during removal pro- 
ceedings, 110 Stat. 3009-585, IIRIRA Section 303(b)(2) provided 
for a two-year transitional period following enactment of IIRIRA 
if the Attorney General determined that there was insufficient 
detention space and personnel to carry out that provision, 110 Stat. 
3009-586. The Attorney General found that there was not ade- 
quate detention space, and the transition period custody rules 
provided for in Section 303(b)(2) of IIRIRA, 110 Stat. 3009-586 to 
587, therefore governed pre-final-order detention during that two- 
year period from October 1996 to October 1998. 

Although those rules governed detention pending removal pro- 
ceedings and not detention beyond the removal period, which is at 
issue here, they nonetheless reflected Congress’s intent to restrict 
the release of criminal aliens, specifically including an alien who 
“cannot be removed because the designated country of removal 
will not accept the alien,” if the Attorney General was not satisfied 
that the alien would not pose a danger to the community and would 
likely appear for scheduled proceedings. IIRIRA § 303(b)(3)(B)(ii), 
110 Stat. 3009-587. 

40 

munity or flight risk. The reasons for restoration of the 
Attorney General’s discretionary authority over post- 
removal-period detention of deportable aliens are best 
understood in light of comments by the Department of 
Justice on the proposed legislation. 

Shortly before H.R. 2202 was considered in confer- 
ence, INS General Counsel David Martin testified be- 
fore a subcommittee of the House of Representatives. 
Mr. Martin noted the problems that the INS was 
experiencing with implementation of the then-recently 
enacted mandatory-detention provisions of AEDPA. 
He then expressed the Department of Justice’s strong 
belief that 

a better enforcement strategy would restore at least 
some of the flexibility previously granted to the At- 
torney General * * * [and would] restore the dis- 
cretion to release certain aliens cooperating with law 
enforcement authorities and others who cannot, de- 
spite INS’s best efforts, be removed—provided they 
meet the earlier tests regarding dangerousness and 
flight risk. The INS fully intends to hold in cus- 
tody, for as long as necessary, those who are 
dangerous to the community. 

Hearing Before the Subcomm. on Immigration and 
Claims of the House Comm. on the Judiciary, 104th 
Cong., 2d Sess. 15 (1996) (emphasis added) (statement 
of David A. Martin). That testimony echoed the views 
expressed by the Department in prior correspondence 
to Members of Congress concerning earlier immigration 
proposals. 

24 

24 See Letter from Jamie S. Gorelick, Deputy Attorney General, 
to Henry J. Hyde, Chairman, Committee on the Judiciary 28 (Sept. 
15, 1995) (criticizing the requirement in Section 305 of original 
H.R. 2202 that deportable aliens be released upon expiration of the 
90-day removal period if they have not been removed and 

41 

explaining that “[t]he requirement that an alien be removed within 
90 days ignores the many barriers that are beyond the INS’ con- 
trol. Obtaining travel documents is labor intensive and may take 
considerable time. Such delays should not prejudice diligent 
enforcement efforts, and the INS should not be required to release 
aliens after 90 days in such instances.”); id. at 29 (recommending 
“that the [then-]current provisions of the INA—giving the Attor- 
ney General the discretion to detain an alien (other than an 
aggravated felon) after a final order and setting a six month period 
for removal, with an unlimited time for removal of an aggravated 
felon—be retained”); Letter from Jamie S. Gorelick, Deputy 
Attorney General, to Richard A. Gephardt, Minority Leader 31-33 
(Mar. 13, 1996) (expressing same concerns about Section 305 of 
H.R. 2202 as reported by the House Committee on the Judiciary); 
Letter from Andrew Fois, Assistant Attorney General, to Robert 
Dole, Majority Leader 33 (Apr. 16, 1996) (expressing strong oppo- 
sition to the mandatory detention requirements of Section 164 of S. 
1664, as reported by the Senate Committee on the Judiciary; sug- 
gesting that, “[g]iven the limitations on habeas review of custody 
status,” elimination of the Attorney General’s discretion to release 
aliens who are not a flight risk or a danger to the community and 
imposition of a mandatory detention regime could raise serious 
constitutional concerns with regard to permanent resident aliens; 
explaining that mandatory detention provision would have “a 
serious adverse impact on the availability of space for the deten- 
tion of both criminal and non-criminal aliens;” complaining that 
“[t]here is no provision for release where travel documents can not 
be secured”; and urging retention of provisions of then-current law 
that vested the Attorney General with discretion to release a 
lawfully admitted alien who is likely to appear for future pro- 
ceedings and presents no danger to the community.); Letter from 
Jamie S. Gorelick, Deputy Attorney General, to Lamar Smith, 
Chairman, Subcommittee on Immigration and Claims, Enclosure 5- 
6 (May 31, 1996) (expressing concern about the recently-enacted 
provision of AEDPA mandating the detention of nearly all criminal 
aliens, without exception, during removal proceedings and until 
removal, and noting the need for a “massive increase in detention 
resources” to meet that requirement; explaining that the AEDPA 
provision essentially reinstated an earlier “no-release” rule whose 
constitutionally had been questioned or that had been held invalid 
by numerous courts and had led to a 1990 amendment allowing 

42 

As noted above, Congress ultimately took the course 
recommended by the Department when the Senate 
receded to the modified versions of Sections 303 and 
305 of the House-passed H.R. 2202. The legislative 
record establishes that the modification of Section 305 
in conference to grant the Attorney General the author- 
ity to continue deportable criminal aliens in detention 
beyond the removal period (but not to require such 
detention) was the product of a compromise between 
the original House version of H.R. 2202, which would 
have required the release of such aliens upon expiration 
of the removal period, and the Senate version (and 
AEDPA), which would have mandated continued de- 
tention of such aliens. See pp. 32, 38, supra. The 
modification did not, however, mandate the release of 
any such aliens, including those whose countries of 
nationality would not accept their return 

25— 

particularly where the Attorney General finds that the 
alien poses a risk to the community. If that had been 

release of a lawfully admitted aggravated felon if he were found 
“not to be a threat to the community and likely to appear for 
hearings”; and suggesting that AEDPA invited renewal of such 
litigation); id. at 6 (recommending rejection of Section 164 of the 
Senate bill and adoption of Sections 303 and 305 of the House bill, 
which provided the Attorney General with “appropriate discretion 
regarding the use of detention facilities”). We have lodged copies 
of those letters with the Clerk of this Court. 

25 When Congress modified Section 305 to allow continued 
detention of deportable aliens beyond the removal period, it was 
well aware that certain countries have refused to accept the return 
of their nationals, and that such refusals could necessitate ex- 
tended detention of some aliens. See, e.g., IIRIRA § 307(a), 110 
Stat. 3009-614 (amending 8 U.S.C. 1253(d) (1994) to authorize the 
Secretary of State to discontinue granting immigrant visas to 
citizens of a country that “denies or unreasonably delays” accept- 
ing the return of its own nationals from the United States); see 
also p. 26 & note 15, supra. 

43 

Congress’s intent, it would have adopted Section 305 of 
H.R. 2022, either as passed by the House or with a 
modification that applied to a particular category of 
criminal aliens, such as those who could not be removed 
to the countries to which they had been ordered 
removed. 

D. The Attorney General’s Interpretation Of Section 

1231(a)(6) Is Entitled To Deference 

As we have explained, the text of Section 1231(a)(6), 
the structure of the relevant provisions of the INA, and 
the statutory history of Section 1231(a)(6) all establish 
that the court of appeals erred in reading into the 
facially unqualified text of Section 1231(a)(6) a limi- 
tation that requires the release of respondent and 
perhaps several thousand other criminal aliens immedi- 
ately upon the expiration of the statutory removal 
period, without regard to whether the Attorney Gen- 
eral has determined that they would pose a danger to 
the community or risk of flight if released. If there is 
any remaining doubt on the question, however, it is re- 
solved by the requirement that deference is owed by 
the courts to the Attorney General’s reasonable inter- 
pretation of the INA. 

This Court has long recognized that the political 
Branches generally enjoy broad power over immigra- 
tion, Chae Chan Ping v. United States, 130 U.S. 581, 
606 (1889), and that the “power to expel or exclude 
aliens [is] a fundamental sovereign attribute exercised 
by the Government’s political departments largely 
immune from judicial control.” Shaughnessy v. United 
States ex rel Mezei, 345 U.S. 206, 210 (1953). This 
Court has recognized those principles in the specific 
context of the detention of aliens by the INS. See Reno 

v. Flores, 507 U.S. 292, 305-306 (1993). More recently, 
the Court has reaffirmed that “judicial deference to the 

44 

Executive Branch is especially appropriate in the 
immigration context where officials ‘exercise especially 
sensitive political functions that implicate questions of 
foreign relations.’ ” Aguirre-Aguirre, 526 U.S. at 425. 

The circumstances confronting the Attorney General 
when the removal of a criminal alien cannot be effectu- 
ated because of the recalcitrance of another nation raise 
the very type of serious questions affecting inter- 
national relations and foreign policy that require such 
deference. The negotiations between the Executive 
Branch and a foreign country concerning the return of 
an alien, as well as to establish the logistics for accom- 
plishing such a return, can be sensitive and difficult at 
times for reasons wholly unrelated to the circumstances 
of any particular alien. It is especially important in that 
situation for the judiciary to defer to the Attorney 
General’s reasonable interpretation of the statute 
governing her authority over custody of the alien who 
has been ordered removed. A different interpretation 
by a court could be misinterpreted to imply that the 
United States believes that removal of the criminal 
alien is futile, contrary to the position of the United 
States, speaking with one voice through the Executive 
Branch. 

It is for reasons such as these that Congress’s ple- 
nary power over immigration matters and the Execu- 
tive’s broad powers in foreign relations give particular 
force in this setting to the usual requirement under 
general principles of administrative law and Chevron 
U.S.A. Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984), that deference is owed to the 
reasonable interpretation of an Act of Congress by the 
agency charged with its administration and enforce- 
ment. See Aguirre-Aguirre, 525 U.S. at 425; 8 U.S.C. 
1103(a) (Supp. IV 1998). The Attorney General’s inter- 
pretation of Section 1231(a)(6) to authorize detention of 

45 

criminal aliens in respondent’s position beyond the 90- 
day removal period is based on the most natural 
reading of the plain language of the statute, as we have 
demonstrated above. At the very least, however, it 
undoubtedly constitutes a reasonable interpretation of 
Section 1231(a)(6), and therefore should be sustained by 
this Court. See Aguirre-Aguirre, 525 U.S. at 425. 

E. The Court Of Appeals Erred In Construing Section 

1231(a)(6) To Bar Detention Of Respondent In Order 

To Avoid What It Believed To Be A Serious 

Constitutional Question 

1. a. Lacking any textual support for its statutory 
interpretation, the court of appeals invoked the canon 
of statutory construction that encourages avoidance of 
an interpretation that raises a serious doubt about the 
constitutionality of a statute. But the constitutional- 
doubt canon cannot be applied to override congressional 
intent. “[W]here Congress has made its intent clear, 
‘[the Court] must give effect to that intent.’ ” Miller v. 
French, 120 S. Ct. 2246, 2253 (2000) (quoting Sinclair 
Refining Co. v. Atkinson, 370 U.S. 195, 215 (1962)). 
The constitutional-doubt canon “is not a license for the 
judiciary to rewrite language enacted by the legisla- 
ture,” Salinas v. United States, 522 U.S. 52, 59-60 
(1997) (quoting United States v. Albertini, 472 U.S. 675, 
680 (1985)), and “does not give a court the prerogative 
to ignore the legislative will,” Commodity Futures 
Trading Comm’n v. Schor, 478 U.S. 833, 841 (1986). 
The court of appeals’ invocation of the canon here vio- 
lates those principles, for it ignores the unqualified text 
of Section 1231(a)(6), the structure of the INA, and the 
statutory history of the Act’s detention provisions, as 
well as the Attorney General’s authoritative interpre- 
tation of those provisions. 

46 

Moreover, to interpret Section 1231(a)(6) to mandate 
release of aliens such as respondent, based on the 
constitutional-doubt doctrine, would be contrary to the 
unambiguous intent of Congress that deportable crimi- 
nal aliens such as respondent be treated the same as 
inadmissible aliens under Section 1231(a)(6). Section 
1231(a)(6) uses the same language to grant the Attor- 
ney General authority to detain beyond the removal 
period aliens who are “inadmissible under section 1182” 
and aliens who are “removable under section * * * 
1227(a)(2).” As even the court of appeals acknowledged 
(Pet. App. 17a-18a), there can be no suggestion that 
Congress intended to mandate the release of dangerous 
inadmissible aliens under Section 1231(a)(6) after expi- 
ration of the removal period. It is well established, 
under Mezei, supra, that an inadmissible alien (termed 
“excludable” at the time of Mezei) may be subject to 
long-term detention when he cannot be removed 
in the reasonably foreseeable future. Based on the 
“presum[ption] that Congress expects its statutes to be 
read in conformity with this Court’s precedents,” 
United States v. Wells, 519 U.S. 482, 495 (1997), Section 
1231(a)(6) must be interpreted in accordance with its 
plain language to authorize the Attorney General to 
detain an alien in respondent’s circumstances beyond 
the removal period if the alien is inadmissible. Chi 
Thon Ngo v. INS, 192 F.3d 390, 398 (3d Cir. 1999) 
(holding that Section 1231(a)(6) authorizes the Attorney 
General to continue to detain an excludable alien 
beyond the 90-day removal period even where the 
progress toward the alien’s ultimate removal is 
“agonizingly slow”). 

26 

26 The Ninth Circuit in this case repeatedly limited its ruling to 
deportable aliens, i.e., those who have “entered the United States” 
(Pet. App. 3a, 10a, 11a), and distinguished this case from those 

47 

Thus, an interpretation of Section 1231(a)(6) based on 
notions of constitutional-doubt would result in the same 
statutory provision being given a different meaning 
depending on whether a particular case involved an 
inadmissible alien or a deportable alien. This Court has 
long recognized that, when Congress uses the same 
language even in different parts of the same statute, it 
generally intends the language to have the same 
meaning. That rule is “at its most vigorous when a term 
is repeated within a given sentence.” Brown v. Gar- 
dner, 513 U.S. 115, 118 (1994). A fortiori here, where 
Congress enacted a single grant of authority to the 
Attorney General over several categories of aliens, 
Congress must be understood to have intended the 
same language to confer the same authority with 
respect to each category. 

b. The text of Section 1231(a)(6) also demonstrates 
that it is not susceptible to a constitutional-doubt inter- 
pretation analogous to that employed by the Court in 
United States v. Witkovich, 353 U.S. 194 (1957), on 
which the court of appeals relied (Pet. App. 3a, 11a, 
26a). In Witkovich, the Court interpreted former Sec- 
tion 1252(d) of Title 8, which imposed conditions of 
supervision on an alien who was not deported within 
the then-applicable six-month deportation period. 
8 U.S.C. 1252(d) (1952 & Supp. V 1957) (now codified in 
substantial ly similar form at 8 U.S.C. 1231(a)(3) (Supp. 
IV 1998)). The Court held that one requirement under 
former Section 1252(d)—that an alien under a final 
deportation order give information under oath as 
deemed proper by the Attorney General, on pain of 
criminal sanction—was limited to the provision of 
information that was reasonably calculated to keep the 

involving inadmissible aliens (id. at 14a-21a). See also id. at 31a- 
32a n.29. 

48 

Attorney General advised regarding the alien’s con- 
tinued availability for deportation (and not, in that case, 
information regarding the alien’s involvement with the 
Communist Party or other organizations). 353 U.S. at 
197-202. The Court interpreted former Section 1252(d) 
in that manner because the sole focus of that section 
was on ensuring the alien’s continued availability for 
deportation and because that interpretation avoided 
constitutional issues that would be raised by a broader 
one. The Court specifically contrasted former Section 
1252(d) with former Section 1252(e), 8 U.S.C. 1252(e) 
(1952), in which Congress expressed its intent that the 
Attorney General take into account broader govern- 
mental interests when determining whether certain 
aliens who are not removed should be released from 
detention, by requiring consideration of “the effect of 
the alien’s release upon national security and the likeli- 
hood of his continued undesirable conduct.” 353 U.S. at 
200. 

Section 1231(a)(6) is analogous to former Section 
1252(e), not former Section 1252(d), because, like for- 
mer Section 1252(e), Section 1231(a)(6) expressly 
authorizes the Attorney General to consider a factor 
other than the likelihood that the alien will comply with 
the removal order—namely, the risk the alien poses to 
the community—when deciding whether to continue an 
alien in detention beyond the removal period. In light 
of that text, Section 1231(a)(6) cannot be construed to 
authorize detention only to ensure the alien’s availabil- 
ity for removal, and to render the alien’s risk to the 
community irrelevant, as the court of appeals held. 

2. The court of appeals’ doubts about the constitu- 
tionality of Section 1231(a)(6) are in any event un- 
founded. The application of Section 1231(a)(6) to aliens 
in respondent’s position fully comports with constitu- 
tional due process requirements. 

49 

The court of appeals was concerned because of what 
it characterized as the “indefinite” nature of respon- 
dent’s detention. Pet. App. 11a, 31a. But respondent’s 
detention was not indefinite or permanent. Although 
the end of respondent’s detention was not demarcated 
by a specific event, as is an alien’s detention pending 
removal proceedings or detention during the 90-day 
removal period, his detention was limited by the 
Attorney General’s administrative review procedures. 
See 8 C.F.R. 241.4; Pet. App. 64a-76a, 90a-91a. Respon- 
dent’s detention would have ceased when he estab- 
lished that he no longer posed a risk to the community, 
and he was afforded an ongoing opportunity to make 
such a showing. Also, INS’s detention of respondent 
would necessarily cease upon his removal from this 
country—a matter that continues to be the subject of 
international negotiations (see Pet. 25 n.17). See 
Zadvydas v. Underdown, 185 F.3d 279, 291, 294 (5th 
Cir. 1999) (ruling that the alien’s detention was not per- 
manent or indefinite because the alien “may be released 
when it is determined that he is no longer either a 
threat to the community or a flight risk”; the alien is 
entitled to periodic review of his custody under INS 
administrative procedures; and it had not been clearly 
established that there was no meaningful possibility of 
locating a country that would accept the alien’s removal 
or that removal was impossible), cert. granted, 121 S. 
Ct. 297 (2000). 

The court of appeals was also concerned about the 
constitutionality of respondent’s continued detention 
because, unlike the aliens whose long-term detention 
was held to be constitutional in Mezei and Barrera- 
Echavarria v. Rison, 44 F.3d 1441 (9th Cir.), cert. 
denied, 516 U.S. 976 (1995), respondent is not an 
excludable alien. Rather, respondent is an alien who 
previously entered the United States (and hence is a 

50 

deportable alien) and who therefore, in the court’s view, 
cannot be treated similarly to an excludable alien who is 
stopped before entering the country. The court of 
appeals did not adequately consider the consequences 
of respondent’s final order of removal. 

Respondent’s final order of removal extinguished his 
status as a lawful permanent resident and eliminated 
any legal right he had to remain in this country. See 
8 U.S.C. 1101(a)(20) (1994); 8 U.S.C. 1101(a)(47)(B)(ii) 
(Supp. IV 1998); 8 C.F.R. 1.1(p). Respondent’s status is 
no longer that of an alien, like the alien in Landon v. 
Plasencia, 459 U.S. 21 (1982), who has developed ties to 
this country and hopes to be able to establish during 
removal proceedings that he should be allowed to 
remain in this country and maintain those ties. Thus, 
the heightened constitutional status accorded respon- 
dent as a lawful permanent resident with regard to 
such matters as due process protections in his removal 
proceedings no longer applies. Duy Dac Ho v. Greene, 
204 F.3d at 1059. In respondent’s circumstances, “the 
only act remaining to be carried out is the actual expul- 
sion of the alien,” and in such a case, “no distinction 
exists between the constitutional rights of former 
resident aliens and those of excludable aliens.” Ibid. 
(citing Zadvydas, 185 F.3d at 294-297). 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

51 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

DONALD KEENER 
QUYNH VU 

Attorneys 

NOVEMBER 2000 

APPENDIX 

1. Section 1226 of Title 8 of the United States Code 
(Supp. IV 1998), provides in relevant part: 

Apprehension and detention of aliens 

(a) Arrest, detention, and release 

On a warrant issued by the Attorney General, 
an alien may be arrested and detained pending a 
decision on whether the alien is to be removed from 
the United States. Except as provided in sub- 
section (c) of this section and pending such decision, 
the Attorney General— 

(1) may continue to detain the arrested 
alien; and 

(2) may release the alien on– 

(A) bond of at least $1,500 with secu- 
rity approved by, and containing conditions 
prescribed by, the Attorney General; or 

(B) conditional parole; but 

(3) may not provide the alien with work 
authorization (including an “employment 
authorized” endorsement or other appropriate 
work permit), unless the alien is lawfully 
admitted for permanent residence or otherwise 
would (without regard to removal proceedings) 
be provided such authorization. 

(b) Revocation of bond or parole 

The Attorney General at any time may revoke 
a bond or parole authorized under subsection (a) of 

(1a) 

2a 

this section, rearrest the alien under the original 
warrant, and detain the alien. 

(c) Detention of criminal aliens 

(1) Custody 

The Attorney General shall take into custody 
any alien who— 

(A) is inadmissible by reason of having com- 
mitted any offense covered in section 1182(a)(2) 
of this title, 

(B) is deportable by reason of having com- 
mitted any offense covered in section 
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this 
title, 

(C) is deportable under section 1227(a)(2)(A)(i) 
of this title on the basis of an offense for which 
the alien has been sentence [sic] to a term of 
imprisonment of at least 1 year, or 

(D) is inadmissible under section 1182(a)(3)(B) 
of this title or deportable under section 
1227(a)(4)(B) of this title, 

when the alien is released, without regard to 
whether the alien is released on parole, supervised 
release, or probation, and without regard to 
whether the alien may be arrested or imprisoned 
again for the same offense. 

(2) Release 

The Attorney General may release an alien 
described in paragraph (1) only if the Attorney 

3a 

General decides pursuant to section 3521 of title 18 
that release of the alien from custody is necessary 
to provide protection to a witness, a potential 
witness, a person cooperating with an investigation 
into major criminal activity, or an immediate family 
member or close associate of a witness, potential 
witness, or person cooperating with such an 
investigation and the alien satisfies the Attorney 
General that the alien will not pose a danger to the 
safety of other persons or of property and is likely 
to appear for any scheduled proceedings. A decision 
relating to such release shall take place in 
accordance with a procedure that considers the 
severity of the offense committed by the alien. 

* * * * * 

2. Section 1231(a) of Title 8 of the United States 
Code (Supp. IV 1998), provides in relevant part: 

Detention and removal of aliens ordered removed 

(a) Detention, release, and removal of aliens ordered 

removed 

(1) Removal period 

(A) In general 

Except as otherwise provided in this section, when 
an alien is ordered removed, the Attorney General 
shall remove the alien from the United States within 
a period of 90 days (in this section referred to as the 
“removal period”). 

(B) Beginning of period 

4a 

The removal period begins on the latest of the 
following: 

(i) The date the order of removal becomes 
administratively final. 

(ii) If the removal order is judicially reviewed 
and if a court orders a stay of the removal of the 
alien, the date of the court’s final order. 

(iii) If the alien is detained or confined (except 
under an immigration process), the date the alien 
is released from detention or confinement. 

(C) Suspension of period 

The removal period shall be extended beyond a 
period of 90 days and the alien may remain in 
detention during such extended period if the alien 
fails or refuses to make timely application in good 
faith for travel or other documents necessary to the 
alien’s departure or conspires or acts to prevent the 
alien’s removal subject to an order of removal. 

(2) Detention 

During the removal period, the Attorney General 
shall detain the alien. Under no circumstance during 
the removal period shall the Attorney General release 
an alien who has been found inadmissible under section 
1182(a)(2) or 1182(a)(3)(B) of this title or deportable 
under section 1227(a)(2) or 1227(a)(4)(B) of this title. 

(3) Supervision after 90-day period 

If the alien does not leave or is not removed within 
the removal period, the alien, pending removal, shall be 

5a 

subject to supervision under regulations prescribed by 
the Attorney General. The regulations shall include 
provisions requiring the alien— 

(A) to appear before an immigration officer 
periodically for identification; 

(B) to submit, if necessary, to a medical and 
psychiatric examination at the expense of the United 
States Government; 

(C) to give information under oath about the 
alien’s nationality, circumstances, habits, associa- 
tions, and activities, and other information the 
Attorney General considers appropriate; and 

(D) to obey reasonable written restrictions on the 
alien’s conduct or activities that the Attorney 
General prescribes for the alien. 

* * * * * 

(6) Inadmissible or criminal aliens 

An alien ordered removed who is inadmissible under 
section 1182 of this title, removable under section 
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or 
who has been determined by the Attorney General to 
be a risk to the community or unlikely to comply with 
the order of removal, may be detained beyond the 
removal period and, if released, shall be subject to the 
terms of supervision in paragraph (3). 

(7) Employment authorization 

No alien ordered removed shall be eligible to receive 
authorization to be employed in the United States 

6a 

unless the Attorney General makes a specific finding 
that— 

(A) the alien cannot be removed due to the 
refusal of all countries designated by the alien or 
under this section to receive the alien, or 

(B) the removal of the alien is otherwise 
impracticable or contrary to the public interest.