No. 00-38 

In the Supreme Court of the United States 

ERIC H. HOLDER, JR., ACTING ATTORNEY GENERAL, 
ET AL., PETITIONERS 

v. 

KIM HO MA 

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

REPLY BRIEF FOR THE PETITIONERS 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

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

Cir.), cert. denied, 516 U.S. 976 (1995) ............................... 
15 

Carlson v. Landon 342 U.S. 524 (1952) ............................. 
13 

Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 1999) .......... 
16 

Duy Dac Ho v. Greene, 204 F.3d 1045 (10th Cir. 
2000) ......................................................................................... 
1, 9 

Fong Yue Ting v. United States, 149 U.S. 698 
(1893) ........................................................................................ 10 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............. 

11 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................. 
2, 12 

Kansas v. Hendricks, 521 U.S. 346 (1997) .............. 
13, 14, 15 

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ........... 
8 

Landon v. Plasencia, 459 U.S. 21 (1982) ........................... 
8 

Lopez v. Davis, No. 99-7504 (Jan. 10, 2001) ...................... 
1, 2 

Marcello v. Bonds, 349 U.S. 202 (1982) ............................. 
19 

Mathews v. Eldridge, 424 U.S. 319 (1976) ......................... 
9 

Plyer v. Doe, 457 U.S. 202 (1982) ........................................ 
7 

Reno v. American-Arab Anti-Discrimination 

Comm., 525 U.S. 471 (1999) ................................................ 

3 

Reno v. Flores, 507 U.S. 292 (1993) ................................ 
12, 19 

Shaughnessy v. United States ex rel. Mezei, 
345 U.S. 206 (1953) ................................................... 
9, 10, 12, 13 

United States v. Salerno, 481 U.S. 739 (1987) .................. 
9, 13 

Wong Wing v. United States, 163 U.S. 228 (1896) ........... 
11 

Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 
1999), cert. granted, 121 S. Ct. 297 (2000) ....................... 
9, 16 

Constitution, statutes and regulations: 

U.S. Const. Amend. V (Due Process Clause) ...................... 

7 

Antiterrorism and Effective Death Penalty Act of 
1996, Pub. L. No. 104-132, 110 Stat. 1214 ........................ 
5, 17 

§ 440(c), 110 Stat. 1277 ..................................................... 6 

(I) 

II 

Statutes and regulations—Continued: 
Page 

Illegal Immigration Reform and Immigrant Responsi- 
bility Act of 1996, Pub. L. No. 104-203, Div. C, 110 
Stat. 3009-546 ..................................................................... 
3, 5, 6 

8 U.S.C. 1231(a)(4)(A) (Supp. V 1999) ........................... 
3 

8 U.S.C. 1231(a)(6) (Supp. V 1999) ........................... 
passim 

8 U.S.C. 1231(a)(7) (Supp. V 1999) ................................. 
2 

8 U.S.C. 1253(a) (Supp. V 1999) ...................................... 
3 

8 U.S.C. 1253(b) (Supp. V 1999) ..................................... 
3 

Immigration Act of 1917, ch. 29, 39 Stat. 876 ...................... 
4 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq. ................................................................................ 
1, 2, 3, 9 

8 U.S.C. 1101(a)(20) .......................................................... 
7 

8 U.S.C. 1227(a)(1)(C) (Supp. V 1999) ........................... 
8 

8 C.F.R.: 
Pt. 1: 

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

8 

Pt. 212: 

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

15, 16 

Section 212.12(a) ................................................................ 
15 

Pt. 241 (as revised by 65 Fed. Reg. 80,281-80,298 
(2000)): 
Section 241.4 ...................................................................... 
14 

Section 241.4(c)(1) ............................................................. 
16 

Section 241.4(c)(2) ............................................................. 
16 

Section 241.4(d) ................................................................. 
17 

Section 241.4(d)(1) ............................................................. 
19 

Section 241.4(h)(1) ............................................................. 
16 

Section 241.4(i)(1) .............................................................. 
17 

Section 241.4(i)(2) .............................................................. 
17 

Section 241.4(i)(3) .............................................................. 
17 

Section 241.4(i)(3)(i) .......................................................... 
17 

Section 241.4(i)(3)(ii) ......................................................... 
17 

Section 241.4(i)(5) .............................................................. 
17 

Section 241.4(k)(2)(i) ......................................................... 
16 

Section 241.4(k)(2)(ii) .................................................... 16, 17 

III 

Regulations—Continued: Page 

Section 241.4(k)(2)(iii) ....................................................... 
17 

Section 241.1(k)(2)(v) ........................................................ 
17 

Miscellaneous: 

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

6 

65 Fed. Reg. (2000): 
pp. 80,281-80,298 .................................................................... 
14 

p. 80,284 ............................................................................. 
17, 19 

pp. 80,284-80,285 .................................................................... 
19 

p. 80,285 ............................................................................. 
15, 16 

p. 80,286 ................................................................................. 
17 

p. 80,288 ................................................................................. 
19 

p. 80,289 ................................................................................. 
15 

p. 80,290 ................................................................................. 
17 

p. 80,291 ................................................................................. 
19 

H.R. Rep. No. 1192, 81st Cong., 1st Sess. (1949) ................ 
5 

S. Rep. No. 2239, 81st Cong., 2d Sess. (1950) ...................... 5 

REPLY BRIEF FOR THE PETITIONERS 

A. Statutory Authority. The Ninth Circuit plainly erred 
in holding that the Attorney General’s statutory authority to 
detain dangerous criminal aliens under 8 U.S.C. 1231(a)(6) 
(Supp. V 1999) is limited to an unspecified “reasonable time” 
beyond the 90-day removal period—and, in particular, that 
the statute does not allow the Attorney General to hold such 
aliens beyond that 90-day period if there is not a reasonable 
likelihood that they will be removed in the reasonably fore- 
seeable future. As we demonstrate in our opening brief (at 
18-45), that holding is contrary to the text of Section 
1231(a)(6), the structure of the Immigration and Nationality 
Act (INA), 8 U.S.C. 1101 et seq., the statutory history of the 
INA’s detention provisions, and the Attorney General’s 
authoritative interpretation of the Act. 

1. a. Section 1231(a)(6) provides that an alien “may be 
detained beyond the removal period” if, inter alia, the alien 
has committed a specified criminal offense, or has been de- 
termined by the Attorney General to be a risk to the 
community or unlikely to comply with the order of removal. 
8 U.S.C. 1231(a)(6) (Supp. V 1999). Section 1231(a)(6) im- 
poses no temporal or other limitations on the Attorney 
General’s discretion. To the contrary, as the Tenth Circuit 
emphasized, Section 1231(a)(6) “expressly allows for con- 
tinued detention 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). Compare Lopez v. 
Davis, No. 99-7504 (Jan. 10, 2001), slip op. 10-11 (constraints 
urged by prisoner on Bureau of Prisons’ discretion “are 
nowhere to be found” in the statute). 

Contrary to respondent’s contention (Br. 31-32), Section 
1231(a)(6) is not ambiguous merely because it does not spec- 
ify how long the Attorney General may detain an alien. 
Congress granted the Attorney General the authority to 
detain or release an alien at any point “beyond the removal 

(1) 

2 

period.” If there is any lingering doubt, however, the Attor- 
ney General’s determination that the facially unqualified 
text of Section 1231(a)(6) authorizes detention of an alien 
who poses a danger to the community even if the alien’s 
country of citizenship has not agreed to his prompt return is 
reasonable and is entitled to deference. See INS v. Aguirre- 
Aguirre, 526 U.S. 415, 425 (1999); compare Lopez v. Davis, 
slip op. 11. 

b. Respondent’s citation (Br. 32-34) to INA provisions 
that specifically address situations in which an alien cannot 
be removed because of obstruction by the alien or recalci- 
trance by his country of citizenship supports, rather than un- 
dermines, the Attorney General’s interpretation of Section 
1231(a)(6). In particular, 8 U.S.C. 1231(a)(7) (Supp. V 1999), 
the subsection immediately following Section 1231(a)(6), pro- 
vides that, although generally aliens who are ordered re- 
moved are ineligible to receive work authorization, that 
prohibition does not apply if an alien “cannot be removed due 
to the refusal of all countries designated by the alien or 
under this section to receive the alien.” That exception in 
Section 1231(a)(7) refutes respondent’s suggestion that Con- 
gress did not contemplate that other countries might refuse 
to accept an alien when it enacted the broad detention 
authorization in Section 1231(a)(6), and it demonstrates that 
Congress would have carved out an express exception to 
that authorization if it had intended to require that such 
aliens be treated differently for detention purposes. See 
Gov’t Br. 25-26; see also Gov’t Br. 39 n.23, 42 n.25. 

c. Respondent contends that Congress could not have 
meant to allow “indefinite” detention under Section 1231(a)(6) 
of aliens whose removal orders were based on grounds that 
are not premised on dangerousness. See Resp. Br. 34-35 
(citing 8 U.S.C. 1227(a)(1)(C) (Supp. V 1999) (visa viola- 
tions)). Congress, however, did not mandate the detention 
of those or any other aliens covered by Section 1231(a)(6), 
and perhaps many or most of the aliens respondent has in 

3 

mind would be released by the Attorney General as neither 
dangerous nor flight risks. But respondent is mistaken to 
suggest that an alien whose order of removal is not based on 
a criminal conviction could not pose a risk of danger to the 
community or of flight if released. Compare Reno v. Ameri- 
can-Arab Anti-Discrimination Comm., 525 U.S. 471, 473 
(1999) (aliens believed to have raised funds for terrorist 
organizations charged with deportability for overstaying 
visas). 

d. Respondent asserts (Br. 35) that it is anomalous to 
interpret Section 1231(a)(6) to allow for detention that may 
extend beyond the criminal sentence that could be imposed 
for violation of conditions of release (8 U.S.C. 1253(b) (Supp. 
V 1999) (one-year maximum)) or willfully preventing one’s 
own removal (8 U.S.C. 1253(a) (10-year maximum)). But de- 
tention of an alien who poses a danger to the community pre- 
vents harm from occurring in the first place, rather than 
imposing punishment after the fact. Moreover, a primary 
purpose of Congress in enacting Section 1231(a)(6) and the 
other detention provisions of the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 
No. 104-208, Div. C, 110 Stat. 3009-546, was to prevent crimi- 
nal aliens from reentering our criminal justice system. Un- 
like imprisonment as punishment for a crime, which in some 
instances may preclude removal of an alien even after a 
travel document becomes available (see 8 U.S.C. 1231(a)(4)(A) 
(Supp. V 1999)), immigration detention allows an alien to be 
removed as soon as a travel document is obtained. 

2. As we explain in our opening brief (at 31-33), and as 
respondent concedes (Br. 35-36, 39-40), Section 1231(a)(6) is 
the culmination of a series of amendments to the INA, dating 
back to 1990, that mandated the detention of certain criminal 
aliens even after the expiration of the six-month period 
following entry of a final deportation order— at least in the 
absence of a showing by the alien or determination by the 
Attorney General that the alien was not a threat to the 

4 

community and was likely to appear for any scheduled 
hearings. See Gov’t Br. 31-33; Resp. Br. App. 8a-15a (repro- 
ducing relevant statutory provisions). None of those amend- 
ments made any exception for aliens who could not be 
deported because their countries of citizenship would not 
take them back. 

Respondent nevertheless claims (Br. 36) that the Attor- 
ney General’s interpretation of Section 1231(a)(6) to grant 
him the discretion to detain such aliens “marks a ‘stark’ de- 
parture from past law.” To support that contention, respon- 
dent asserts (id. at 39-40 & n.27) that those predecessor pro- 
visions, despite their explicit text, did not actually apply to 
what respondent calls “undeportable aliens,” because those 
provisions did not specifically refer to such aliens. See id. at 
36, 39-40 & n.27. Respondent cites nothing (and there is 
nothing) in the text, legislative history, or judicial interpre- 
tation of any of those amendments to support that assertion. 
Indeed, the most common reason why an alien cannot be re- 
moved promptly is that the alien’s country of citizenship has 
declined to accept his prompt return; and, in any event, Con- 
gress’s overriding concern was that criminal aliens would 
commit further crimes while they remained in the United 
States, irrespective of why they remained here. Respon- 
dent’s argument for an implied exception from those prede- 
cessor statutes therefore is inconsistent with the central 
premises of their authorization for continued detention.1 

1 Respondent notes (Br. 36-37) that in cases in the 1920s and early 
1930s arising under the Immigration Act of 1917, ch. 29, 39 Stat. 874, 
several lower courts had held that an alien ordered deported could be 
detained for only a “reasonable” time to effectuate deportation. That Act 
was not at all similar to Section 1231(a)(6) because it contained no pro- 
vision expressly authorizing detention beyond a deportation period. It 
provided simply for an alien to “be taken into custody and deported” 
(Resp. Br. 36 n.23), which suggests detention only during a period of 
actual deportation. In any event, the rationale of those old decisions is 
unclear, and they are of no relevance in interpreting Section 1231(a)(6), 
which has a distinct text and statutory history. See also Gov’t Br. 24 n.14. 

5 

It is, in fact, respondent’s interpretation of Section 
1231(a)(6) that would reflect a dramatic change from the de- 
tention provisions that preceded its enactment. Under re- 
spondent’s interpretation, the Attorney General would be 
required to release a criminal alien in respondent’s circum- 
stances immediately upon expiration of the 90-day removal 
period—despite the Attorney General’s determination that 
the alien would pose a danger to the community or a risk of 
flight if released. There is no evidence whatsoever to sug- 
gest that Congress intended a radical departure from the 
mandatory detention provision in the Antiterrorism and 
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 
104-132, 110 Stat. 1214, that would not only permit but re- 
quire the Attorney General to release such an alien. As we 
have explained (Gov’t Br. 33-43), the legislative history of 
AEDPA and IIRIRA confirms that Congress did not do so, 
but instead vested the Attorney General with discretion to 
release criminal aliens “whose home countries will not or 
cannot take them back,” if “the Attorney General believes 
the alien would pose no danger to the community.” See 

Respondent also notes (Br. 32 n.20, 34, 37) that in 1950, Congress failed 
to pass a bill that would have authorized detention of certain aliens “until 
departure from the United States.” As respondent points out (Br. 37), the 
House did pass that bill, in an effort to address the situation in which 
another country would not accept the return of dangerous aliens. See 
H.R. Rep. No. 1192, 81st Cong., 1st Sess. 3, 6-7, 9-10 (1949). The Senate 
did not agree to that provision. Respondent quotes a statement in the 
Senate Report that the provision “appears to present a Constitutional 
question” (Br. 37 (quoting S. Rep. No. 2239, 81st Cong., 2d Sess. 8 (1950)), 
and asserts on that basis that the provision “was rejected on constitutional 
grounds” (Br. 34). The Senate Report expressly states, however, that 
“[t]he committee, without undertaking to pass on the constitutionality of 
this provision,” decided to delete it and to provide instead for criminal 
sanctions against certain criminal aliens who fail to depart the United 
States. S. Rep. No. 2239, supra, at 8 (emphasis added). All the legislative 
history of the 1950 Act shows, then, is that Congress decided not to enact 
then what it found necessary to enact in 1996. That episode half a century 
ago has no bearing on the interpretation of Section 1231(a)(6). 

6 

Gov’t Br. 37 (quoting 141 Cong. Rec. 15,068 (1995) (remarks 
of Sen. Kennedy)).2 

Under the Ninth Circuit’s interpretation, by contrast, the 
Attorney General must release a criminal alien no matter 
how serious the risk of danger (or flight) the alien would 
pose, whenever a court determines that there is not a rea- 
sonable likelihood that the alien will be removed in the rea- 
sonably foreseeable future. Pet. App. 23a, 25a. And the 
Ninth Circuit’s decision has in fact resulted in the release of 
many aliens who were found to present a serious risk of 
harm or flight if released—a finding supported in many cases 
by a substantial criminal history.3 

2 Respondent attempts (Br. 42) to dismiss Senator Kennedy’s com- 
ments as mere expressions of “fears and doubts” by an opponent of legis- 
lation. What respondent overlooks is that Senator Kennedy was speaking 
in opposition to Section 440(c) of AEDPA, which flatly prohibited the 
release of criminal aliens, and was urging that Congress instead enact a 
provision granting the Attorney General discretion to release a criminal 
alien whose country would not take him back. See Gov’t Br. 37-38. Con- 
gress did precisely that when it enacted Section 1231(a)(6) as part of 
IIRIRA less than six months later. Congress acted in response not only 
to Senator Kennedy, but also to urging by the INS and Department of 
Justice, see Gov’t Br. 40-42 & n.24, and as a compromise between the 
House version of the bill (which would have mandated the release of 
criminal aliens after the removal period) and the Senate version (which 
would have prohibited the release of such aliens); see id. at 34-35, 38. 

3 See, e.g., INS v. Your Khorn, No. 00-668, Pet. at 4-7 (filed Oct. 26, 
2000) (criminal history of repeated rape of children and no evidence of 
rehabilitation); INS v. Oudone Mounsaveng, No. 00-751, Pet. at 4-6 (filed 
Nov. 9, 2000) (convictions for rape of minor, reckless endangerment, drug 
possession, and attempt to elude police; juvenile adjudications arising out 
of street gang robberies of gun store (during which gang member was 
killed) and home (where masked gang members held 20 people at gun- 
point); at least four arrests for failure to appear and two for probation vio- 
lation; and disciplinary action while in custody for possession of sharpened 
instrument); INS v. Saroeut Ourk, No. 00-987, Pet. at 4-6 (filed Dec. 15, 
2000) (conviction for rape of minor arising out of armed gang kidnapping 
and repeated rape and sexual assault of victim; repeated violations of 
parole); INS v. Be Huu Nguyen, No. 00-1000, Pet. at 4-7 (filed Dec. 18, 
2000) (extensive criminal history, including convictions for drug-related of- 
fenses, disciplinary action for assaulting another detainee while in custody, 

7 

B. Substantive Due Process. Respondent argues (Br. 11- 

28), apparently as an alternative ground for affirmance, that 
Section 1231(a)(6) violates substantive due process if it 
authorizes the Attorney General to detain criminal aliens 
whose countries of citizenship will not accept responsibility 
for their repatriation, even if the Attorney General deter- 
mines that the alien would pose a risk to the community or 
would be unlikely to comply with the order of removal if 
released. The court of appeals did not decide the consti- 
tutional issue, because it held that Section 1231(a)(6) does 
not grant the Attorney General that authority as a statutory 
matter. We address the substantive due process argument 
in our brief for the respondents in Zadvydas v. Underdown, 
No. 99-7791, which squarely raises that issue and has been 
consolidated with this case for oral argument. We address 
here several points made by respondent and his amici. 

1. Respondent erroneously characterizes the govern- 
ment’s position to be that “the constitutional guarantees of 
due process do not apply to aliens once they are ordered 
deported from the United States.” Resp. Br. 14; see also id. 
at 13-15, 17. That is not our position. Aliens in the United 
States under final orders of removal are “persons” for 
purposes of the Due Process Clause. Plyler v. Doe, 457 U.S. 
202, 210 (1982). 

The entry of a final order of deportation or removal does, 
however, extinguish a person’s status as an alien lawfully 
admitted for permanent residence, and it eliminates what- 
ever legal right any alien might once have had to be in this 
country. See 8 U.S.C. 1101(a)(20) (“term ‘lawfully admitted 
for permanent residence’ means the status of having been 

and repeated violations of parole and INS supervision conditions while on 
earlier release from INS custody); INS v. Thanh Duc Tran, No. 00-985, 
Pet. at 4-7 (filed Dec. 15, 2000) (convictions for attempted murder and 
assault with firearm, flight from jurisdiction and fugitive from justice for 
two years, federal drug trafficking conviction, and institutional miscon- 
duct). 

8 

lawfully accorded the privilege of residing permanently in 
the United States as an immigrant in accordance with the 
immigration laws, such status not having changed”) (empha- 
sis added); 8 C.F.R. 1.1(p) (lawful permanent resident status 
“terminates upon entry of a final administrative order of 
exclusion or deportation”). Thus, although respondent is 
correct that he once was “an alien whose ‘constitutional 
status change[d]’ when he gained admission to this country 
and lawfully ‘develop[ed] the ties that go with permanent 
residence’ ” (Br. 14 (quoting Landon v. Plasencia, 459 U.S. 
21, 32 (1982))), he ignores the fact that his status has now 
changed back to what it was before he was granted resident 
status, and he has no lawful right to maintain the ties that go 
with permanent residence.4 Because an alien like respon- 
dent no longer has any right to be in the United States, or to 
work or to maintain any ties here, the alien has a greatly 
diminished claim to a liberty interest in being released into 
the community of the United States. 

Entry of a final order of removal also has a significant 
bearing on what process is “due,” both substantively and 
procedurally, with respect to detention and other immigra- 
tion matters up to the point when the alien is actually 
removed from the United States. In determining what pro- 
cess is due, substantial weight must be given to the good 
faith judgments of Congress and of the Attorney General, to 
whom Congress has assigned the responsibility for admin- 

4 Plasencia teaches that, if an alien has been granted permanent resi- 
dent status and has not departed from the United States for a significant 
period, that status will affect what process is due in proceedings to 
determine whether a final order of removal will be entered and the alien 
will be stripped of his privilege of remaining in the United States. See 459 
U.S. at 32-37. But contrary to respondent’s suggestion (Br. 14), Plasencia 
does not support the notion that heightened due process protection 
continues to apply even after permanent resident status is formally termi- 
nated. Respondent’s reliance (Br. 13-14) on Kwong Hai Chew v. Colding, 
344 U.S. 590, 596 n.5 (1953), is misplaced for the same reasons. 

9 

istering the INA and for weighing the relevant factors in 
doing so. Mathews v. Eldridge, 424 U.S. 319, 349 (1976). 

In that regard, Congress has made clear, in the series of 
amendments culminating in the enactment of Section 
1231(a)(6) in 1996, that in its judgment detention of a crimi- 
nal alien under a final order of removal is justified if the alien 
poses a risk to the community or is unlikely to appear for 
further immigration proceedings—two undoubtedly legiti- 
mate concerns of the government. United States v. Salerno, 
481 U.S. 739, 747, 749 (1987). See Zadvydas Gov’t Br. 27-28 
nn.13 & 14 (discussing widespread commission of crimes by 
criminal aliens after being released by INS during deporta- 
tion process, as well as disappearance of criminal aliens who 
were released). 

As the Fifth Circuit held in Zadvydas v. Underdown, 185 
F.3d 279 (5th Cir. 1999), for purposes of due process scrutiny 
of detention under the immigration laws in these circum- 
stances, Congress reasonably may regard an alien like re- 
spondent, who is deportable and subject to a final order of 
removal, as standing on essentially the same footing as an 
excludable alien who has been ordered removed after seek- 
ing to enter the United States. Id. at 288-290, 294-297; 
accord Duy Dac Ho v. Greene, 204 F.3d 1045, 1058-1059 (10th 
Cir. 2000) (citing Shaughnessy v. United States ex rel. Mezei, 
345 U.S. 206, 213 (1953)).5 

Respondent contends (Br. 15-17) that Mezei does not sup- 
port our position because the alien in that case was “exclud- 
able” (see Gov’t Br. 19 n.10) while respondent was “deport- 

5 Congress treated the specified categories of deportable aliens and all 
“excludable” aliens (now termed “inadmissible” aliens, see Gov’t Br. 19 

n.10) the same for purposes of Section 1231(a)(6), vesting the Attorney 
General with the discretionary authority to detain both beyond the re- 
moval period. Congress also made no distinction between deportable and 
excludable aliens when it authorized the Attorney General to detain any 
alien the Attorney General determines “to be a risk to the community or 
unlikely to comply with the order of removal.” 8 U.S.C. 1231(a)(6) (Supp. 
V 1999). 

10 

able.” But the due process analysis here turns not on the 
alien’s status or the nature of the removal charges against 
him before entry of a final order of removal, but rather on the 
remaining interests the alien has after entry of such an 
order, weighed against the governmental purposes furthered 
by the detention. As explained above (pp. 7-9), after entry of 
a final removal order, an alien’s lack of any right to be in the 
United States, and his resulting lack of any cognizable right 
to maintain and enjoy ties here, are the same whether the 
alien was previously excludable or deportable. Similarly, the 
United States’ interests in protecting its national sover- 
eignty, in not allowing recalcitrance on the part of another 
country in accepting the return of its citizens to dictate the 
presence of foreign nationals at large in this country, in 
protecting our society from any such foreign nationals who 
would pose a danger if released, and in ensuring the con- 
tinued availability of an alien ordered removed, are the same 
whether the alien was previously excludable or deportable. 

Furthermore, as a matter of sovereign power, the gov- 
ernment’s right to expel aliens who previously were per- 
mitted to reside in the United States “rests upon the same 
grounds, and is as absolute and unqualified, as the right to 
prevent their entrance into the country” in the first place. 
Fong Yue Ting v. United States, 149 U.S. 698, 707, 713 (1893) 
(see Gov’t Br. 37-38). For deportable as well as excludable 
aliens, Congress may legitimately determine that “other 
countries ought not shift the onus to us; that an alien in 
respondent’s position is no more ours than theirs.” Mezei, 
345 U.S. at 216. Indeed, insofar as the alien’s own country of 
citizenship is concerned, the alien is that country’s respon- 
sibility rather than ours, and the alien must look primarily to 
that country for his liberty, once it allows him to return.6 

6 Respondent asserts (Br. 16) that in its brief in Mezei, the govern- 
ment acknowledged a difference between the indefinite detention of an 
excludable alien and a deportable alien. The government’s brief in Mezei 
noted that two district courts had held that aliens could not be detained 

11 

2. Contrary to respondent’s contention (Br. 21-23), sub- 
stantial deference is due under the Constitution to the Attor- 
ney General’s decision to detain an alien under a final depor- 
tation order, pursuant to authority expressly granted by 
Congress. This Court has long recognized that “any policy 
toward aliens is vitally and intricately interwoven with 
contemporaneous policies in regard to the conduct of foreign 
relations, the war power, and the maintenance of a republi- 
can form of government,” and that “[s]uch matters are so ex- 
clusively entrusted to the political branches of government 
as to be largely immune from judicial inquiry or interfer- 
ence.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 
(1952). As we explain in our opening brief (at 44) and in our 
brief in Zadvydas (at 20-22), there is no exception to these 
fundamental principles of deference for matters concerning 
the detention of aliens who have been ordered removed from 
the United States. Indeed, “[p]roceedings to exclude or 
expel [aliens] would be vain if those accused could not be 
held in custody pending the inquiry into their true character 
and while arrangements were being made for their deporta- 
tion.” Wong Wing v. United States, 163 U.S. 228, 235 (1896). 
Issues concerning the detention or release of such aliens 
have clear implications for the Nation’s sovereignty, secu- 
rity, and foreign relations. These concerns may be especially 

indefinitely while the INS sought to carry out their deportation orders, 
and stated that that theory was erroneous when applied to exclusion 
cases. Gov’t Br. at 20 & n.9, Mezei, supra (No. 139). The brief went on to 
state that the then-recent 1950 amendments to the immigration laws 
limiting the period of detention pending deportation to six months (see 
note 1, supra) were “appropriate because confinement in deportation 
cases is merely a step in aid of expulsion and, if too long continued, the 
confinement takes the place of the deportation which was ordered.” Id. at 

20. That statement of a possible rationale for a six-month detention period 
in the statute as it then existed does not affect the constitutionality of 
Section 1231(a)(6), which embodies Congress’s considered judgment, in 
the current domestic and foreign context, that the Attorney General 
should be authorized to detain an alien beyond the now-90-day removal 
period, when necessary to protect the community. 

12 

pronounced when the removal of a dangerous criminal alien 
cannot be effectuated immediately because of the refusal by 
another nation to accept responsibility for its own citizens. 
That could be true, for example, when the other country’s 
refusal is part of a broader diplomatic schism between the 
two nations, or when arrangements for repatriation are 
linked to efforts at a more general normalization of relations. 
There would be serious adverse consequences for the United 
States if that other country, simply by refusing to accept the 
return of its own citizens, could force the United States to 
allow those aliens to be at liberty in the United States, even 
if they would cause harm to the community or flee if 
released. And those consequences would be exacerbated if a 
court of the United States ordered the release of the aliens 
on the basis of its own determination that they are unlikely 
to be removed in the near future because of such recalci- 
trance. The effect would be to undermine the position of the 
political Branches in the international community that the 
other nation must promptly accept the return of its citizens 
who have been ordered deported from the United States. 
“The judiciary is not well positioned to shoulder primary 
responsibility for assessing the likelihood and importance of 
such diplomatic repercussions.” INS v. Aguirre-Aguirre, 526 
U.S. at 425. For these reasons, the plenary power of the 
political Branches over immigration matters necessarily en- 
compasses the formulation of policies concerning the deten- 
tion of aliens against whom removal proceedings have been 
commenced or a final order of removal has been entered. 
See Reno v. Flores, 507 U.S. 292, 305-306 (1993). 

This Court has also made clear that, when Congress vests 
in the Attorney General the discretionary authority over 
detention decisions regarding aliens subject to deportation, 
such decisions are subject to only the most deferential stan- 
dard of judicial review. See Flores, 507 U.S. at 306 (INS 
regulation governing detention must meet “the (unexacting) 
standard of rationally advancing some legitimate govern- 

13 

mental purpose”); Carlson v. Landon, 342 U.S. 524, 540-541 
(1952) (noting congressional intent “to make the Attorney 
General’s exercise of discretion presumptively correct and 
unassailable except for abuse”); Mezei, 345 U.S at 210; 
Zadvydas Gov’t Br. 23. Respondent’s argument (Br. 17, 20- 
21, 27-28) for heightened due process scrutiny (requiring 
least-restrictive-means or narrow-tailoring) cannot be recon- 
ciled with those rulings. 

3. Respondent concedes (Br. 18) that the government 
“has a legitimate interest in effectuating deportation and, in 
so doing, protecting the public and preventing risk of flight.” 
Accord ACLU Br. 2. Respondent contends (Br. 23-28), how- 
ever, that detention of aliens in his position is unconstitu- 
tionally excessive compared to the interests the government 
seeks to protect. That contention is without merit. If the 
Attorney General concludes that an alien under a final order 
of removal would pose a danger to the community or risk of 
flight if released, then retention of that alien in custody 
beyond the 90-day removal period, subject to periodic re- 
view, corresponds directly to Congress’s legitimate inter- 
ests. In Mezei and Carlson, the Court sustained the con- 
tinued detention of aliens based on determinations of future 
dangerousness. See Zadvydas Gov’t Br. 29-31. The Court 
also has upheld the constitutionality of detention based on 
future dangerousness in other contexts, involving citizens, 
where the special deference to the political Branches in 
matters regarding aliens was not even involved. Kansas v. 
Hendricks, 521 U.S. 346, 356-357 (1997); Salerno, 481 U.S. at 
748-751; see Zadvydas Gov’t Br. 31-34, 46-47. 

Respondent invokes (Br. 19) the Court’s observation that 
in the context of civil commitment, “[a] finding of dangerous- 
ness, standing alone, is ordinarily not a sufficient ground 
upon which to justify indefinite involuntary commitment,” 
and that civil commitment statutes have been sustained 
“when they have coupled proof of dangerousness with proof 
of an additional factor such as ‘mental illness’ or ‘mental 

14 

abnormality.’ ” Hendricks, 521 U.S. at 358. But of course 
neither the Attorney General’s taking of an alien into 
custody upon the filing of removal charges, nor the retention 
of dangerous criminal aliens in custody during removal pro- 
ceedings and pending their actual removal, is civil com- 
mitment under this Court’s cases. It is an exercise of the 
United States’ sovereign powers to expel or exclude aliens 
from the country. Furthermore, the detention of an alien in 
respondent’s circumstances does not depend on a “finding of 
dangerousness, standing alone.” Ibid. Under governing 
regulations, detention is based on the likelihood of future 
dangerousness (or flight), “coupled” with an “additional 
factor” (ibid.) of great significance—the entry of a final order 
or removal, which terminates any right of the alien to be at 
liberty in the United States. Nothing in Hendricks or re- 
lated cases undermines the power of Congress to authorize 
the Attorney General to detain an alien who is under a final 
order of removal in these circumstances. 

4. Moreover, the administrative procedures adopted by 
the Attorney General guard against detention that is not 
related to the concededly legitimate governmental interests 
that Section 1231(a)(6) serves. Those procedures afford an 
alien an ongoing opportunity to be released from detention 
by demonstrating that he would not pose a danger to the 
community or risk of flight if released. The current proce- 
dures are set forth in a regulation that was published by the 
Attorney General in final form on December 21, 2000, fol- 
lowing notice and comment. See 65 Fed. Reg. 80,281-80,298 
(to be codified at 8 C.F.R. 241.4 (reproduced at Zadvydas 
Gov’t Br. App. 9a-26a)). (All subsequent citations are to this 
revised version of 8 C.F.R. 241.4). That regulation super- 
sedes the regulation promulgated in 1997 that initially gov- 
erned detention beyond the removal period under Section 
1231(a)(6). 

a. The procedures under the new regulation are modeled 
after those that, since 1987, have governed the detention or 

15 

release of Mariel Cubans—Cubans who came to the United 
States during the Mariel boatlift between April 15 and Octo- 
ber 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. 8 C.F.R. 212.12. See Barrera-Echavar- 
ria v. Rison, 44 F.3d 1441 (9th Cir.) (en banc), cert. denied, 
516 U.S. 976 (1995) (upholding Mariel Cuban Review Plan 
against constitutional challenge). Like the Mariel Cuban 
Review Plan, see 65 Fed. Reg. 80,289, the new regulation 
provides for an automatic annual review of any alien who has 
been retained in custody and allows for more frequent 
reviews, initiated by either the alien or the INS, thus evinc- 
ing INS’s intent regularly to reconsider aliens for release, 
consistent with the interests in ensuring against flight and 
danger to the community. Compare Hendricks, 521 U.S. at 
364 (upholding civil commitment of sexually violent predator 
as “only potentially indefinite” because the determination 
regarding commitment must be made annually, thereby 
demonstrating that the State does not intend a detainee to 
remain in custody beyond the period during which he con- 
tinues to present a threat of dangerousness). 

The new regulation also builds on several memoranda that 
were issued by the Executive Associate Commissioner of the 
INS in 1999 to provide guidance to field offices to supple- 
ment the initial 1997 detention regulation. See Gov’t Br. 6-7, 
11-12; Zadvydas Gov’t Br. 40-46; id. App. 32a-39a. Those 
memoranda afforded significant additional protections and 
benefits to aliens who remained in custody under a final 
order of removal. During the period from February 1999, 
when the first of those memoranda was released, through 
mid-November 2000, “approximately 6,200 aliens [were] 
provided custody reviews by district directors * * * to 
determine whether detention of the alien beyond the 90-day 
removal period is warranted.” 65 Fed. Reg. at 80,285. “Of 
those aliens, approximately 3,380 were released.” Ibid. Both 
the Third and Fifth Circuits endorsed that interim 

16 

framework for custody reviews in rejecting constitutional 
challenges to detention beyond the removal period under 
Section 1231(a)(6). Chi Thon Ngo v. INS, 192 F.3d 390, 399 
(3d Cir. 1999) (INS’s interim procedures “provide[d] reason- 
able assurance of fair consideration” of an alien’s suitability 
for release pending his removal from the United States); 
Zadvydas, 185 F.3d at 287-288.7 

b. The new regulation transfers authority from district 
directors (where the decisionmaking authority rested under 
the old regulation) to an INS Headquarters Post-Order De- 
tention Unit (HQPDU), see 8 C.F.R. 241.4(c)(2) and (k)(2)(ii), 
patterned after the unit that has reviewed Mariel Cuban 
cases for the past decade, see 8 C.F.R. 212.12. That central- 
ized Headquarters review separates the responsibility for 
continued custody determinations from the responsibility for 
conducting the removal proceedings themselves, and pro- 
vides for expertise and uniformity of treatment in reviewing 
the detention of aliens throughout the country. 

The HQPDU will ordinarily conduct a custody review dur- 
ing the first three months of detention under Section 
1231(a)(6) or as soon thereafter as practicable. 8 C.F.R. 
241.4(k)(2)(ii).8 The panel will provide the alien with 30 days’ 

7 As the INS also explained when it promulgated the new regulation 
in December 2000, “[t]he experience of the Cuban Review plan concretely 
demonstrates that these procedures provide sound decision making for 
both the Government and the alien.” 65 Fed. Reg. 80,285. Since the 
inception of that plan in 1988, “parole has been granted in over 7,000 cases 
(some of these may be the same individuals who are reparoled).” Ibid. 

8 An initial review, typically conducted by the district director, will be 
conducted even before the 90-day removal period expires and 
responsibility is transferred to the HQPDU. 8 C.F.R. 241.4(c)(1), (h)(1), 
and (k)(2)(i). The purpose of that initial review is to afford an opportunity 
for immediate release, without the need for more elaborate procedures, if 
it appears from the available information that the alien does not pose a 
danger to the community or a flight risk. In preparation for the review, 
the alien is provided access to his INS A-file, which contains all written 
custody recommendations and decisions, as well as material relevant to 
the alien’s immigration history generally and information regarding his 

17 

notice of its review. Ibid. It will first conduct a records 
review; if the alien is not released based on that review, he is 
entitled to an interview by a two-member panel designated 
to make recommendations to the Executive Associate Com- 
missioner. 8 C.F.R. 241.4(i)(1), (2) and (3). The alien may be 
accompanied by a person of his choice at the interview. 8 
C.F.R. 241.4(i)(3)(i), (ii). An alien also is entitled to submit to 
the panel any written information that supports his release. 
8 C.F.R. 241.4(i)(3)(ii). If the two panel members disagree, a 
third reviewer is added to vote on the release decision. 8 
C.F.R. 241.4(i)(1). The panel will provide a written recom- 
mendation that includes a brief statement of the factors the 
panel deemed material to its recommendation. 8 C.F.R. 
241.4(i)(5). The Executive Associate Commissioner will then 
make the final release determination based on the criteria in 
the regulation and all relevant information. If an alien is not 
released from custody by that decision, his case is 
automatically reviewed within approximately one year of 
such a decision. 8 C.F.R. 241.4(k)(2)(iii). In the meantime, 
an alien may submit a written request (not more than once 
every three months) to the HQPDU for release based on a 
material change in circumstances. Ibid.. The HQPDU, in its 
discretion, may also review a detainee at shorter intervals. 8 
C.F.R. 241.4(k)(2)(v). A copy of any decision to release or 
detain an alien must be provided to the detained alien, and a 
decision to retain custody must briefly set forth the reasons 
for the continued detention. 8 C.F.R. 241.4(d).9 

criminal history. 65 Fed. Reg. 80,286, 80,290. The INS also will provide 
the alien with a list of available pro bono or low-cost legal representatives 
who may assist the alien in the process. Id. at 80,284. 

9 Respondent’s amici allege (Catholic Legal Immigration Network 
Inc., et al. (CLINIC) Br. 7-10, 14-21) that there have been inadequacies in 
particular cases in the past that would be inconsistent with the procedures 
described in the text under the new regulation. As amici recognize 
(CLINIC Br. 8-9), however, some of those problems arose because of con- 
fusion about the eligibility of some aliens for release under the mandatory 
detention provisions of AEDPA, the transition period custody rules that 

18 

c. Respondent’s amici note that the foregoing procedures 
do not include all of the features of the pretrial-detention and 
civil-commitment schemes that have been upheld by this 
Court. See Catholic Legal Immigration Network, Inc., et al. 
(CLINIC) Br. 7-29; ACLU Br. 13-17. Unlike the individuals 
in those cases, however, respondent has been adjudged to 
have no legal right to be in the United States. That core 
component of his liberty interest thus has already been 
extinguished under procedures that concededly satisfy due 
process. Furthermore, as we have already explained, great 
deference is due the Attorney General’s implementation of 
the congressionally vested authority over detention of crimi- 
nal aliens beyond the removal period. 

In any event, a number of the specific objections by re- 
spondent (Br. 21) and his amici (CLINIC Br. 10-24; ACLU 
Br. 5, 13-16, 23) were addressed by the INS when it prom- 
ulgated the final regulation on December 21, 2000. For ex- 
ample, the new regulation no longer includes the “clear and 
convincing” evidence standard that aliens had to meet in or- 
der to be released under the old regulation and review proc- 
ess. Instead, it provides that the Attorney General may re- 
lease an alien “if the alien demonstrates to the satisfaction of 
the Attorney General or [his] designee that his or her re- 
lease will not pose a danger to the community or to the 
safety of other persons or to property or a significant risk of 

were in effect during the first two years after IIRIRA was enacted, and 
then Section 1231(a)(6). See Gov’t Br. 32-33, 39; see also Zadvydas Gov’t 
Br. 25-26 & n.12. Throughout those periods, the INS endeavored to 
ensure fair implementation of the program, including development of the 
interim guidelines in 1999 to regularize custody review timing and pro- 
cedures, and to remedy some of the problems cited by amici, while the 
permanent regulation was being developed. Many of amici’s complaints 
date from before those interim procedures were implemented, and all, of 
course, date from before the December 21, 2000, effective date of the new 
regulation. They accordingly furnish no basis for concluding that imple- 
mentation of the new regulation adopted on December 21, 2000, will fail to 
afford adequate protection to respondent and other aliens. 

19 

flight pending such alien’s removal from the United States.” 
8 C.F.R. 241.4(d)(1). The INS also made clear that the 
regulation does not preclude consideration of the length of 
time that a detainee has been in immigration custody and the 
fact that the alien cannot be returned to his country of ori- 
gin. 65 Fed. Reg. 80,288. And the INS expressed its intent 
to establish additional pilot projects in the next year to de- 
velop supervised release alternatives to detention for aliens 
under final orders of removal, based on the results of a 
recently completed study by the Vera Institute of Justice. 
Id. at 80,291. 

The INS declined to adopt the suggestion by some com- 
menters that custody determinations be made outside of the 
INS, pointing to the success of the analogous Mariel Cuban 
Review Plan. 65 Fed. Reg. 80,284-80,285 (citing Marcello v. 
Bonds, 349 U.S. 302, 311 (1955) (rejecting constitutional 
challenge to use of INS special inquiry officer in deportation 
proceeding)). The INS emphasized, however, its agreement 
that specific training is needed for the INS officers who will 
be making custody recommendations and determinations, 
noted that such on-going training is provided to the 
members of Cuban Review Panels, and assured that training 
“will be maintained and routinely monitored with the 
implementation of the final rule.” Id. at 80,284. 

10 

10 Amici also raise challenges to the conditions of various detainees’ 
confinement. CLINIC Br. 27-30; ACLU Br. 22-23. They cite (CLINIC 
Br. 25, 28) an investigation by the Justice Department’s Civil Rights 
Division of the use of excessive force against immigration detainees at the 
Jackson County, Florida, correctional facility. As amici note, INS 
detainees were held in the jail only until 1998. We have been informed by 
the INS that it withdrew its detainees from the facility when serious alle- 
gations of abuse were substantiated even before the investigation began. 
Moreover, as amici acknowledge, the INS has recently issued written 
standards to govern all facilities that house INS detainees, in direct 
response to complaints about conditions of confinement. See Detention 
Operations Manual (2000). The INS’s highest detention priority is the 
“safe, humane, and secure confinement of illegal aliens.” Id. at 1; cf. 

Flores, 507 U.S. at 301. 

20 

d. Because the new regulation adopted by the INS on 
December 21, 2000, has not been applied by the INS to 
respondent, there is no occasion for this Court to consider its 
application to respondent or others in his position. If the 
Court reverses the Ninth Circuit’s holding that the Attorney 
General has no statutory authority to detain such aliens— 
and further holds that the detention does not violate sub- 
stantive due process—the INS should be given the opportu- 
nity to decide in the first instance whether respondent 
should be returned to and retained in custody under the new 
regulation. If respondent is detained after that review— 
and is not removed from the country in the meantime—the 
district court could entertain any challenges to the INS’s 
procedures and the decision it rendered in a new petition for 
a writ of habeas corpus at that time. 

11 

CONCLUSION 

For the foregoing reasons and those set forth in our 
opening brief, the judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 
JANUARY 2001 

11 Respondent’s lengthy argument (Br. 25-27) that he does not pose a 
danger to the community should not be accepted at face value. Respon- 
dent ignores, for example, the denials by an immigration judge of his bond 
requests during the pendency of his removal proceeding, based on findings 
about respondent’s denial of his criminal actions, denial of his gang 
activity, lack of credibility about his drug abuse, and absence of any 
evidence of rehabilitation. See Gov’t Br. 4-5 & n.3, 12 n.7. Moreover, 
contrary to respondent’s suggestion (Br. 27), the dismissal of the assault 
charges referred to in our opening brief (at 12-13 n.7) does not mean that 
the INS would be required to ignore any evidence of conduct underlying 
those charges, to the extent it was credible and relevant to the issue of 
future dangerousness.