No. 00-38 

In the Supreme Court of the United States 

JANET RENO, ET AL., PETITIONERS 

v. 

KIM HO MA 

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

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting 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 deten- 
tion during that 90-day removal period of aliens who have 
been found removable based on a conviction for an aggra- 
vated 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 presented 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 defendants in the district 
court and were appellants in the court of appeals. Respon- 
dent 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 ...................................................................................... 2 

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

Statement ........................................................................................ 4 

Reasons for granting the petition ............................................... 
15 

Conclusion ....................................................................................... 30 

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

Appendix B ..................................................................................... 
34a 

Appendix C ..................................................................................... 
52a 

Appendix D ..................................................................................... 
55a 

Appendix E ..................................................................................... 
62a 

Appendix F ..................................................................................... 
64a 

Appendix G ..................................................................................... 
69a 

Appendix H ..................................................................................... 
77a 

Appendix I ...................................................................................... 
87a 

Appendix J ...................................................................................... 
90a 

TABLE OF AUTHORITIES 

Cases: 

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

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

14, 18, 26 

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

29-30 

Carrera-Valdez v. Perryman, 211 F.3d 1046 (7th 

Cir. 2000) ................................................................................. 

25 

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

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

18 

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

23, 

26, 29 

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

15, 22, 23, 24 

Gisbert v. United States Attorney Gen., 988 F.2d 1437 

(5th Cir. 1993) ......................................................................... 

25 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............. 29 

(III) 

IV 

Cases—Continued: Page 

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

18, 29 

Mathews v. Diaz, 426 U.S. 67 (1976) ................................... 

29 

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 

206 (1953) ................................................................................. 

14 

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

1999), petition for cert. pending, No. 99-7791 ................... 

14, 

24, 26, 29 

Statutes and regulations: 

Act of Nov. 18, 1988, Tit. VII, Subtit. J, Pub. L. No. 
100-690, § 7343(a), 102 Stat. 4470 ........................................ 

20 
Antiterrorism and Effective Death Penalty Act of 
1996, Pub. L. No. 104-132, § 440(c), 110 Stat. 1277 .......... 
20 

Illegal Immigration Reform and Immigrant Respon- 
sibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 
3009-546: 
§ 303(b), 110 Stat. 3009-586 to 3009-587 ....................... 
21 

§ 303(b)(3)(B), 110 Stat. 3009-587 .................................. 
5 

§ 305, 110 Stat. 3009-598 ................................................. 
21 

§ 306, 110 Stat. 3009-607 ................................................. 
21 

§ 307(a), 110 Stat. 3009-614 ............................................ 
22 

Immigration Act of 1990, Pub. L. No. 101-649, 
§ 504(a), 104 Stat. 5049 .......................................................... 
20 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq.: 
8 U.S.C. 1101(a)(20) ............................................................ 
6, 23 

8 U.S.C. 1101(a)(43)(F) (Supp. IV 1998) ............................ 
5 

8 U.S.C. 1101(a)(47)(B)(ii) (Supp. IV 1998) ...................... 
6 

8 U.S.C. 1103(a)(1) ................................................................. 
18 

8 U.S.C. 1226(c)(1) (Supp. IV 1998) .................................... 
21 

8 U.S.C. 1226(c)(2) (Supp. IV 1998) .................................... 
21 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998) ........................ 
4, 5 

8 U.S.C. 1231(a) (Supp. IV 1998) ...................................... 
2, 21 

8 U.S.C. 1231(a)(1) (Supp. IV 1998) .................................... 
21 

8 U.S.C. 1231(a)(1)(A) (Supp. IV 1998) .............................. 
17 

8 U.S.C. 1231(a)(2) (Supp. IV 1998) .......................... 
7, 17, 21 

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

V 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1231(b)(3)(B)(ii) (Supp. IV 1998) ......................... 
5 

8 U.S.C. 1252(a)(1) (1988) ..................................................... 
19 

8 U.S.C. 1252(a)(2) (1988) ..................................................... 
20 

8 U.S.C. 1252(a)(2) (1994) ..................................................... 
21 

8 U.S.C. 1252(a)(2) (Supp. III 1997) ................................... 
20 

8 U.S.C. 1252(a)(2)(A) (Supp. II 1990) ............................... 
20 

8 U.S.C. 1252(a)(2)(B) (Supp. II 1990) ............................... 
20 

8 U.S.C. 1252(a)(2)(B) (Supp. III 1991) ............................. 
19 

8 U.S.C. 1252(a)(2)(B) (1994) ............................................... 
20 

8 U.S.C. 1252(c) (1982) .......................................................... 
19 

8 U.S.C. 1252(d) (1982) .......................................................... 
19 

8 U.S.C. 1253(d) (1994) .......................................................... 
22 

Immigration Technical Corrections Act of 1991, 

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

20 

66 Stat. 208 ................................................................................. 
19 

28 U.S.C. 2241 ............................................................................ 
8 

8 C.F.R.: 

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

6, 23 

Section 212.12 ..................................................................... 
12, 28 

Section 212.12(a) .................................................................... 
12 

Section 236.1(d)(2)(ii) ............................................................ 
28 

Section 241.4 ............................................. 
4, 7, 10, 26, 27, 90a 

Section 241.4(a) ...................................................................... 
28 

Section 241.5 ........................................................................... 
26 

Miscellaneous: 

65 Fed. Reg. (2000): 

p. 40,540 ................................................................................... 

29 

pp. 40,540-40,548 ................................................................ 13, 28 

In the Supreme Court of the United States 

No. 00-38 

JANET RENO, ET AL., PETITIONERS 

v. 

KIM HO MA 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the Attorney General 
and the other federal petitioners, respectfully petitions for a 
writ of certiorari to review the judgment of the United 
States Court of Appeals for the Ninth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 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 (App., 
infra, 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 (App., infra, 52a-54a) is 
reported at 56 F. Supp. 2d 1165. The September 29, 1999, 
opinion of the district court granting respondent habeas 
relief (App., infra, 55a-61a) is not reported. The June 2, 1999, 
custody decision by the Immigration and Naturalization 
Service (INS) District Director and the underlying May 6, 
1999, custody review report (App., infra, 77a-86a) are not 
reported. The September 29, 1999, custody decision of the 

(1) 

2 

INS headquarters review committee (App., infra, 87a-89a) is 
not reported. 

JURISDICTION 

The judgment of the court of appeals was entered on April 
10, 2000. A petition for rehearing was denied on June 2, 2000 
(App., infra, 62a-63a). The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

STATUTORY AND REGULATORY PROVISIONS 
INVOLVED 

1. Section 1231(a) of Title 8 of the United States Code 
provides, in relevant part: 

§ 1231. 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 Gen- 
eral shall remove the alien from the United States 
within a period of 90 days (in this section referred to 
as the “removal period”). 

* * * * * 

(2) Detention 

During the removal period, the Attorney General 
shall detain the alien. Under no circumstances during 
the removal period shall the Attorney General release 
an alien who has been found inadmissible under section 

3 

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

(A) to appear before an immigration official 
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 Attor- 
ney 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 

4 

period and, if released, shall be subject to the terms of 
supervision in paragraph (3). 

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

2. The regulations of the Immigration and Naturalization 
Service that currently govern the detention of aliens beyond 
the 90-day removal period, 8 C.F.R. 241.4, are set forth at 
App., infra, 90a-91a. 

3. The February 3, 1999, memorandum from the Execu- 
tive 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 App., infra, 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 App., infra, 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. App., infra, 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.; A.R. 8-9, 144.1 Respondent was sentenced to three 
years and two months’ imprisonment. App., infra, 60a n.4. 

b. On June 6, 1997, respondent was released from state 
custody and, pursuant to a detainer previously lodged by the 
INS, was transferred to INS custody and ordered detained. 
A.R. 48, 194, 249. On July 3, 1997, the INS issued respon- 
dent a notice to appear, charging him with being subject to 
removal under 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998) 

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

5 

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. A.R. 63-69. 
Respondent appealed that ruling to the Board of Immigra- 
tion Appeals (Board), which denied relief. A.R. 4-10. 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). A.R. 4-5. The Board 
further held that respondent was ineligible for withholding 
of removal under 8 U.S.C. 1231(b)(3)(B)(ii) (Supp. IV 1998), 
which precludes such relief if “the alien, having been con- 
victed of a particularly serious crime, is a danger to the com- 
munity of the United States.” A.R. 4-5. The Board agreed 
with the immigration judge that respondent’s conviction for 
participating in “a gang related violent ambush resulting in 
the death of [the] victim constitutes a particularly serious 
crime” (id. at 9), noting, inter alia, that he “received almost 
the maximum sentence that could be ordered based on his 
criminal record” (id. at 8). 

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 (A.R. 83- 

88), and December 31, 1997 (A.R. 35-41), the immigration 
judge denied those requests. The immigration judge deter- 
mined that respondent’s detention was authorized by the 
Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA), Pub. L. No. 104-208, §303(b)(3)(B), 110 
Stat. 3009-587—the transitional period custody rules, which 
authorized the Attorney General to release a lawfully admit- 
ted alien in respondent’s circumstances only if the alien 
“satisfies the Attorney General that the alien will not pose a 

6 

danger to the safety of other persons or of property and is 
likely to appear for any scheduled proceedings.” A.R. 39, 87. 
The immigration judge determined that respondent “would 
be a danger to the community if he is released,” 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.” Id. at 40.2 The 
immigration judge also pointed to respondent’s lack of credi- 
bility in denying that he abused drugs and found “nothing in 
the respondent’s file to indicate that he was rehabilitated.” 
Ibid.3 

2. a. Respondent’s order of removal became final on 
October 26, 1998. The final order of removal extinguished 
respondent’s status as a lawful permanent resident and 
eliminated any legal right of respondent to remain in this 
country. See 8 U.S.C. 1101(a)(20); 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 Cambo- 
dian government. App., infra, 58a. 

During the 90-day period following the issuance of respon- 
dent’s final removal order, respondent was detained by the 
INS pursuant to 8 U.S.C. 1231(a)(2) (Supp. IV 1998). That 

2 The report explained that “[p]olice reports indicate that [respon- 
dent] had been associated with the gang and its members 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. 

3 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 understand why the immigration 
judge may not want to release [him] on a bond.” A.R. 231. 

7 

section mandates detention, during the 90-day period follow- 
ing 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 Cam- 
bodia 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 detained pursuant to 8 
U.S.C. 1231(a)(6) (Supp. IV 1998), which authorizes the 
detention of an alien who, inter alia, has been found remov- 
able based on a conviction 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.” 
Respondent’s continued detention under 8 U.S.C. 
1231(a)(6) is subject to periodic review under the governing 
INS regulations, 8 C.F.R. 241.4, and implementing direc- 
tives. See App., infra, 64a-68a, 90a-91a. By memorandum 
dated February 3, 1999, entitled “Detention Procedures for 
Aliens Whose Immediate Repatriation Is Not Possible or 
Practicable,” the Executive Associate Commissioner of the 
INS “clarifie[d] the authority 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)].” App., 
infra, 64a. The first periodic review mandated by INS pro- 
cedures is during the 90-day removal period. Ibid. There- 
after, a detainee’s custody status is automatically reviewed 
on a periodic basis “to determine whether there has been a 
change in circumstances that would support a release deci- 
sion since the 90 day review.” Id. at 66a. 

8 

The INS conducted its first periodic review of respon- 
dent’s custody in May 1999. That review included an inter- 
view of respondent and consideration of supporting docu- 
mentary material submitted by his family and friends. App., 
infra, 77a-86a. On June 2, 1999, the INS notified respondent 
that it had decided to continue to detain him, based on a 
consideration of the factors set forth in the governing 
regulations and all material submitted by respondent during 
the review process. Ibid. That notice detailed the statement 
made by respondent and his attorney, as well as the evidence 
submitted by respondent concerning his family ties, but also 
noted, under “Community Concerns,” that respondent “was 
a member of the ‘Local Asian Boyz’ (LAB) in the Seattle 
area and was convicted of Manslaughter in the 1st Degree.” 
Id. at 80a. It also noted that respondent had to be trans- 
ferred 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 in- 
formed respondent that he could, at any time, request a 
redetermination of his custody status, if supported by evi- 
dence that he would appear at all future immigration 
proceedings and that he would not pose a threat to the 
community. App., infra, 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. A.R. 208-214. Respondent con- 
tended that his native country of Cambodia refused to accept 
him and that there was no INS panel to review his detention, 
which, he maintained, rendered his detention indefinite and 
unconstitutional. Id. at 211. Respondent’s case was one of 
approximately 100 such cases then pending in the Western 
District of Washington. 

9 

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

The five-judge panel’s joint order established a frame- 
work for analyzing an individual habeas petitioner’s claim 
that his detention violates substantive 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 interest is, more broadly, 
a “fundamental liberty interest in being free from incar- 
ceration,” which requires “strict scrutiny” of any decision to 
detain aliens in respondent’s position. App., infra, 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 immi- 
gration 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 acknowl- 
edged that detention of aliens such as respondent furthers 
the permissible governmental interest in securing the safe 
removal of aliens and the incidental goals of preventing flight 
and protecting the public from dangerous felons. App., 
infra, 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 likeli- 

10 

hood that the government will be able to effectuate deporta- 
tion, against the dangerousness of a petitioner and the 
likelihood that he will abscond if released.” Ibid. The panel 
noted that the government’s interest in detention decreases 
as the probability of removal of the alien decreases, conclud- 
ing that it would be excessive “to detain an alien indefinitely 
if deportation will never occur.” Ibid. Application of the 
substantive due process test was left to each judge in each 
individual case. 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 detention of the alien are adequate. App., 
infra, 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 submis- 
sion 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 meaningfully 
and impartially review the petitioners’ custody status.” 
App., infra, 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 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. App., 
infra, 52a-54a. The court determined that certain facts rele- 
vant to determining the weight of the government’s interest 
under the due process analysis were not adequately devel- 
oped in the record, and it ordered an evidentiary hearing. 
Id. at 54a. 

11 

c. On September 29, 1999, following the hearing, the 
district court granted respondent habeas corpus relief. App., 
infra, 55a-61a. Although the government contended that the 
court should not adhere to the joint order in light of inter- 
vening developments, including the INS’s institution of addi- 
tional review procedures (see page 12, infra), the court de- 
cided 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 concerning ne- 
gotiations between the United States and Cambodia about 
entering into a formal agreement for the repatriation of 
Cambodian nationals. App., infra, 59a. Those negotiations 
included a meeting in September 1999 between officers of 
the State Department and the Cambodian Consulate in 
Washington, D.C., at which the United States’ preliminary 
proposal for a repatriation agreement was discussed. De- 
spite those developments, the court declared that respon- 
dent’s “deportation to Cambodia is far from imminent,” ibid. 
and 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 deporting [re- 
spondent], the government has not shown a strong interest 
in continuing his detention based upon his threat to the 
public or his proclivity to abscond.” Ibid. The court directed 
that respondent be released subject to appropriate condi- 
tions. Id. at 61a.4 

d. The district court stayed its order granting habeas 
relief in order to permit the government time to seek a stay 

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

12 

from the court of appeals. App., infra, 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 government 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 in the 
district court, the INS had implemented additional interim 
review procedures for cases involving aliens such as respon- 
dent who are detained in INS custody following issuance of 
final orders of removal because their immediate removal is 
not practicable. See App., infra, 69a-76a. By memorandum 
dated August 6, 1999, the INS Executive Associate Commis- 
sioner directed that, under the new interim procedures, a 
decision to continue an alien in INS custody would be subject 
to a review by INS headquarters. That headquarters review 
is similar to that afforded 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. App., infra, 71a. 

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 order granting habeas corpus 
relief, but the adoption of the additional review procedures 
was brought to the court’s attention. See App., infra, 57a. 
The headquarters review in respondent’s case took place on 

13 

September 30, 1999, and the determination was to continue 
respondent in INS custody. See Id. at 87a-89a.5 

5. The court of appeals affirmed the district court’s judg- 
ment granting respondent habeas corpus relief, App., infra, 
1a-33a, but without reaching the constitutional 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. App., 
infra, 3a-4a.6 
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.” 
App., infra, 10a. The court concluded, however, that, be- 
cause Section 1231(a)(6) does not specify a particular length 
of time during which continued detention is authorized, it 
should be construed to permit detention “only for a rea- 
sonable time beyond the statutory removal period.” Id. at 

5 On June 30, 2000, the Commissioner published proposed regulations 
to put in place a permanent custody-review program that would maintain 
or enhance the centralized review and other procedural protections set 
forth in the interim procedures. 65 Fed. Reg. 40,540-40,548. 

6 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. We have been informed that the State 
intends to appeal that dismissal. 

After respondent’s arrest, he had been 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 from ordering 
him back into custody for violating his release conditions. On April 10, 
2000, the court of appeals issued its decision 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. 

14 

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 construction of Section 
1231(a)(6) because it allowed the court to avoid deciding the 
constitutionality of respondent’s detention7; because it was 
unwilling to conclude that Congress intended to authorize 
indefinite detention in the absence of a clear statement to 
that effect; because it believed that reading a “reasonable 
time” limitation into Section 1231(a)(6) would be consistent 
with the Ninth Circuit’s interpretation of a similar provision 
in an earlier immigration statute; and because that inter- 
pretation is, in the court’s view, more “consonant with 
international law.” Ibid. 

The court of appeals then concluded that there is no rea- 
sonable likelihood that the INS will be able to remove 
respondent to Cambodia “[i]n the absence of a repatriation 

7 The court of appeals rejected the government’s argument that the 
constitutional-avoidance doctrine is not applicable in this case because the 
constitutional question was answered by the Ninth Circuit’s en banc deci- 
sion in Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.), 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 involved excludable aliens, i.e. aliens who 
had not entered the country, rather than aliens who already entered the 
country and had greater constitutional rights. App., infra, 14a-22a. The 
court noted that the Fifth Circuit, in resolving the constitutional question 
in Zadvydas v. Underdown, 185 F.3d 279 (1999), petition for cert. pending, 
No. 99-7791, had concluded that an alien under a final order of removal 
stands on essentially the same footing as an excludable alien. App., infra, 
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. 

15 

agreement, extant or pending.” App., infra, 32a. Therefore, 
under the court’s ruling, the INS was no longer authorized 
to detain respondent. Ibid.8 

REASONS FOR GRANTING THE PETITION 

The court of appeals erred in holding that the Attorney 
General is not authorized by 8 U.S.C. 1231(a)(6) (Supp. IV 
1998) to detain respondent even though respondent is under 
a final order of removal, has been determined by the 
Attorney General to pose a risk of danger if released, and is 
entitled to automatic, period administrative review of his 
custody. That Ninth Circuit decision in this case squarely 
conflicts with the Tenth Circuit’s decision in Duy Dac Ho v. 
Greene, 204 F.3d 1045 (2000), which held, inter alia, that 
Section 1231(a)(6) expressly allows the Attorney General, in 
her discretion, to continue to detain aliens such as 
respondent. In addition, the result reached by the Ninth 
Circuit cannot be reconciled with Zadvydas v. Underdown, 
185 F.3d 279 (5th Cir. 1999), petition for cert. pending, No. 
99-7791, which did not question the statutory authorization 
for detention under Section 1231(a)(6) and rejected a con- 
stitutional challenge to such detention. 

The scope of the Attorney General’s authority to detain 
criminal aliens under final orders of removal who have been 
found to pose a threat of danger or flight is a question of 
exceptional public importance. The decision in this case has 
already affected a large number of cases pending before the 
Ninth Circuit and before district courts in that circuit. 
There are 59 cases pending on the government’s appeal to 
the Ninth Circuit and an additional 40 cases in which a 
district court has ordered the release of such an alien, but a 

8 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 case en banc, the matter failed to receive a majority of the votes of 
active judges in favor of en banc consideration. App., infra, 62a-63a. 

16 

notice of appeal has not yet been filed. And there are 
approximately 400 cases raising such challenges still pending 
in various district courts in the Ninth Circuit. The court of 
appeals’ erroneous decision thus has already broadly in- 
truded into the Attorney General’s enforcement of the 
immigration laws and her ability to protect the public, and 
has ushered in a widespread disruption of the INS’s orderly 
administration and review of the custody of many aliens 
similarly situated in the Ninth Circuit. For those reasons, 
and in view of the circuit conflict, review by this Court is 
warranted. 

1. The court of appeals erred in ruling that, because 
Cambodia has thus far not agreed to respondent’s return and 
the United States does not have a formal repatriation agree- 
ment with Cambodia, the Attorney General’s continued de- 
tention of respondent is not authorized by 8 U.S.C. 1231(a)(6) 
(Supp. IV 1998).9 The court of appeals ordered the INS to 
release respondent from custody even though: (1) the INS, 
in the exercise of express statutory authority, had decided 
that respondent should be retained in custody because he 
would pose a danger to the community if released; (2) the 
INS has adopted procedures that provide for periodic review 
of an alien’s custody, under which respondent would be 
afforded the opportunity to demonstrate that he would no 
longer pose a danger to the community if released; and (3) 

9 Although the court of appeals “h[e]ld that Congress did not grant the 
INS authority to detain indefinitely aliens who, like [respondent], have 
entered the United States and cannot be removed to their native land pur- 
suant to a repatriation agreement,” App., infra, 10a (emphasis added) (see 
also id. at 25a), the question of a need for a formal repatriation agreement 
was never briefed in the court of appeals. We have been informed by the 
INS, however, that generally the removal of a criminal alien to another 
country does not proceed pursuant to a formal repatriation agreement but, 
rather, is effectuated through the normal process for obtaining travel 
documents for other nationals of that country. 

17 

the State Department is engaged in ongoing negotiations 
regarding an arrangement with Cambodia that would allow 
the removal of respondent and other aliens to that country. 

10 

Nothing in the text of Section 1231(a)(6) justifies the result 
reached by the court of appeals. 

a. The opinion of the court of appeals rewrites an unam- 
biguous statutory provision that was specifically designed, 
following a series of legislative amendments, to authorize the 
Attorney General to detain dangerous criminal aliens who 
are under a final order of removal. Section 1231(a)(6) should 
not be construed to mandate the automatic release of aliens 
in circumstances such as these, and thus to vitiate the 
important authority of the Attorney General to protect the 
public and to ensure the enforcement of the immigration 
laws, absent a clear expression of an intent by Congress to 
effect such a significant departure from past law. 

The Immigration and Nationality Act (INA) provides 
that, once a final order of removal is entered against an alien, 
the alien becomes subject to detention by the INS for a 
period of 90 days (the “removal period”), during which pe- 
riod the Attorney General is to remove the alien. See 8 
U.S.C. 1231(a)(1)(A) and (2) (Supp. IV 1998). Certain aliens, 
including aliens who have been found to be removable based 
on a conviction for an aggravated felony, must be detained 
during the 90-day removal period. Upon expiration of that 
90-day period, the detention of specified categories of 

10 We have been informed by the INS and the Department of State 
that, on April 27, 2000, the United States and the Government of Cambo- 
dia reached agreement in principle regarding the repatriation of each 
other’s nationals. The two countries memorialized that agreement in 
principle in a joint statement. We are lodging a copy of that statement 
with the Court and furnishing a copy to counsel for respondent. We 
sought to bring this development to the attention of the court of appeals in 
a reply brief in support of our petition for rehearing en banc, but the court 
of appeals denied leave to file that reply. 

18 

criminal aliens and certain other aliens is governed by 8 
U.S.C. 1231(a)(6) (Supp. IV 1998). The text of Section 
1231(a)(6) is clear in authorizing the continued detention of 
the aliens it identifies: 

Inadmissible or criminal aliens.—An alien ordered 
removed who is inadmissible under section 1182, remov- 
able 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 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) (emphasis added). 

Section 1231(a)(6) sets no limitation on the length of de- 
tention beyond the removal period, leaving the continuation 
of detention to the sound discretion of the Attorney General. 
At the very least, the Attorney General’s interpretation of 
Section 1231(a)(6) to authorize the detention of aliens in 
respondent’s position is reasonable and therefore entitled to 
deference under Chevron U.S.A. Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837, 843-844 (1984), and INS 

v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). See also 8 
U.S.C. 1103(a)(1) (Supp. IV 1998); Barrera-Echavarria, 44 
F.3d at 1444 (according Chevron deference to Attorney 
General’s interpretation of INA detention provision). 

b. The Attorney General’s interpretation of the text of 
Section 1231(a)(6) is fully supported by the evolution over 
the past decade of the statutory provisions governing deten- 
tion of criminal aliens under final orders of removal. 

Since at least 1990, Congress has unequivocally exempted 
the detention of aggravated felons following entry of a final 
order of deportation from any statutory time limit that ap- 
plied generally to other aliens. Indeed, Congress has consis- 
tently allowed, and at times mandated, that the Attorney 

19 

General continue to detain aggravated felons. By contrast, 
nothing in the last decade of amendments to the INA 
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 judi- 
cially 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 Section 1231(a)(6) in 1996, 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 depor- 
tation. 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 deporta- 
tion ha[d] not been practicable, advisable, or possible, or 
departure of 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 prescribed 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 convicted of 
an aggravated felony upon completion of his criminal sen- 
tence, and not to release such an aggravated felon from cus- 
tody, notwithstanding 8 U.S.C. 1252(a)(1) (1988), which 

20 

otherwise permitted the discretionary release of aliens 
pending deportation proceedings. See 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 applied notwithstanding subsec- 
tions (c) and (d) of Section 1252—the provisions that other- 
wise generally governed an alien’s detention after he became 
subject to a final order of deportation. The amendment also 
added a statutory exception to the mandatory-detention pro- 
vision that required the release on bond or other conditions 
of those aggravated felons who had been lawfully admitted 
for permanent residence. That exception applied, however, 
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 Pub. L. No. 101-649, § 504(a), 104 
Stat. 5049; 8 U.S.C. 1252(a)(2)(A) and (B) (Supp. II 1990). 

In 1991, Congress amended the statutory exception to the 
provision for mandatory detention of aggravated felons to 
specify that the Attorney General could not release any 
lawfully admitted alien who was an aggravated felon, “either 
before or after a determination of deportability,” unless the 
alien demonstrated “to the satisfaction of the Attorney Gen- 
eral that such alien is not a threat to the community and that 
the alien is likely to appear before any scheduled hearings.” 
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 Ho v. Greene, 204 F.3d at 1056 n.8. 

On April 24, 1996, Congress again amended 8 U.S.C. 
1252(a)(2) through enactment of Section 440(c) of the Anti- 
terrorism and Effective Death Penalty Act of 1996 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1277. That amend- 
ment 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 eliminated the provision allowing the 

21 

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. 

It is against that backdrop that Congress enacted Sections 
305(a)(3) and 306(a)(1) of IIRIRA, which amended the pro- 
visions regarding detention of criminal aliens under final 
orders of removal and moved them from 8 U.S.C. 1252(a)(2) 
(1994) (as amended by AEDPA) to 8 U.S.C. 1231(a) (Supp. 
IV 1998). See Pub. L. No. 104-208, §§ 305, 306, 110 Stat. 
3009-598, 3009-607. 

11 Under the new Section 1231(a), the 
INA continues to mandate that, following entry of a final 
order of removal, the Attorney General must detain certain 
aliens, including aggravated felons, during the removal 
period (which is now 90 days rather than six months). 
8 U.S.C. 1231(a)(1) and (2) (Supp. IV 1998). 

12 Section 1231(a) 
also preserves the Attorney General’s authority to detain 
aggravated felons thereafter, specifying that they “may be 
detained beyond the removal period.” 8 U.S.C. 1231(a)(6) 
(Supp. IV 1998). Rather than requiring such detention as 
under AEDPA, however, Congress reinstated the pre- 

11 IIRIRA also established the transition period custody rules, which 
were in effect for a two-year period ending in October 1998. IIRIRA 
§ 303(b), 110 Stat. 3009-586 to 3009-587. Although those rules governed 
detention pending removal proceedings and are not directly implicated in 
the instant case, they also reflected Congress’s intent to restrict the 
release of criminal aliens, 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. 110 
Stat. 3009-587. 

12 See also 8 U.S.C. 1226(c)(1) and (2) (Supp. IV 1998) (mandating de- 
tention of, among others, aggravated felons pending removal proceedings, 
with the sole exception of aliens whose release is necessary to protect 
cooperating witnesses or their family members and only if the alien would 
not pose a risk of danger or flight). 

22 

AEDPA approach, granting the Attorney General discretion 
to decide whether to detain aggravated felons and any other 
alien “who has been determined by the Attorney General” to 
pose a risk of danger to the community or flight if released. 
8 U.S.C. 1231(a)(6) (Supp. IV 1998). 

There is no evidence to suggest that, in enacting Section 
1231(a)(6), Congress intended, contrary to its consistent 
treatment of the detention of criminal aliens over the course 
of the preceding decade, to require the Attorney General to 
release an aggravated felon who she determines would pose 
a danger to the community or a flight risk if released. Sec- 
tion 1231(a)(6) is correctly interpreted, consistent with long- 
standing congressional intent, to ensure that the Attorney 
General retains the discretionary authority to detain such 
aliens. 

13 

2. a. The court of appeals’ ruling that the Attorney 
General’s authority to detain aliens under 8 U.S.C. 1231(a)(6) 
(Supp. IV 1998) beyond the removal period is limited to a 
judicially fashioned and undefined “reasonable time” directly 
conflicts with the Tenth Circuit’s decision in Ho v. Greene, 
204 F.3d at 1057. The Tenth Circuit held, inter alia, that 
Section 1231(a)(6) “is not ambiguous,” id. at 1056, and “places 
no time limit on the detention of the aliens whose continued 
detention it authorizes,” including aliens who the Attorney 
General has determined would pose a risk of danger or flight 
if released. Id. at 1057. To the contrary, it reasoned, the 
statute “expressly allows for continued detention beyond the 

13 When Congress acted to restrict the release of aggravated felons, it 
was well aware that certain countries have refused to accept the return of 
their nationals, and that such refusals could necessitate extended deten- 
tion of some aliens beyond the removal period. 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” accepting the return of its 
own nationals from the United States). 

23 

removal period with no time limit placed on the duration of 
such detention.” Ibid. (emphasis omitted). The Tenth Cir- 
cuit declined to “substitute its judgment for that of Congress 
by reading into the statute a time limit that is not included in 
the plain language of the statute.” Ibid. The court 
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 Tenth Circuit, in Ho, also rejected a constitutional 
challenge to continued detention under Section 1231(a)(6). 
The court noted that any right the aliens in that case had to 
remain in this country “was extinguished when their 
removal orders became final.” 204 F.3d at 1058 (citing 8 
U.S.C. 1101(a)(20); 8 C.F.R. 1.1(p)). The court reasoned that, 
therefore, the purported liberty interests at stake “are most 
appropriately viewed from the perspective of an alien who 
has sought but been denied initial entry into this country and 

14 The Tenth Circuit noted that its statutory interpretation is in accord 
with the Third Circuit’s decision in Chi Thon Ngo v. INS, 192 F.3d 390, 
394-395 (1999) (Ngo). In Ngo, the court of appeals rejected statutory and 
constitutional challenges to long-term detention of an excludable alien (one 
who has not entered the country, now termed “inadmissible” under the 
INA as amended by IIRIRA), who was under a final order of exclusion 
but could not be immediately removed. The detention of such inadmissible 
aliens following the 90-day removal period is now governed by the same 
statute that is at issue here, 8 U.S.C. 1231(a)(6) (Supp. IV 1998). The 
Third Circuit read Section 1231(a)(6) to provide that the Attorney General 
“may continue to detain [an inadmissible alien] until deportation if he has 
been found guilty of designated crimes.” 192 F.3d at 395. 

24 

who is subject to indeterminate detention because his 
country of origin will not accept his return.” 204 F.3d at 
1058. The court rejected the claim that a deportable alien 
possesses greater constitutional rights than an excludable 
alien in these circumstances because of his former status as a 
lawful permanent resident, noting that that argument had 
recently been rejected by the Fifth Circuit in Zadvydas, 185 
F.3d at 294-297. Consequently, the Tenth Circuit rejected 
the aliens’ due process claims because they did not possess a 
liberty interest in their asserted right to be temporarily 
admitted into this country. 204 F.3d at 1059-1060. 

b. The result reached by the Ninth Circuit in this case 
also cannot be reconciled with the Fifth Circuit’s decision in 
Zadvydas, which upheld the continued detention of an alien 
who is subject to a final order of deportation and whose 
deportation cannot be effected immediately. 185 F.3d at 287, 
291, 297. The Fifth Circuit did not question that Section 
1231(a)(6) authorized the detention of the alien beyond the 
90-day removal period, see id. at 286-287, and it rejected a 
due process challenge to that detention. 

The court analyzed the constitutional question on the pre- 
mise that the detained alien is able to obtain periodic review 
of his detention under INS regulations (see 185 F.3d at 287- 
288 & n.9), and that the detention is not permanent or indefi- 
nite (see id. at 291-294). The court found that the detention 
is not permanent or indefinite because (1) the alien may be 
released after a review if the INS determines that he no 
longer poses a risk of danger or flight if released; and (2) it 
was not clearly established that there was no meaningful 
possibility of locating a country to which the alien could be 
removed, even though that process could be difficult and 
time consuming. Ibid. In those circumstances, the court 
held that the continued detention under Section 1231(a)(6) of 
a criminal alien who cannot be immediately removed did not 
violate substantive due process, in light of the government’s 

25 

interest in protecting society from further criminal activity 
by the alien and in ensuring that he does not flee and 
thereby frustrate his eventual removal. Id. at 296-297. 

The Fifth Circuit acknowledged the contrary constitu- 
tional ruling by the five-judge district court panel in the 
instant case and expressly declined to follow it. 185 F.3d at 
297 n.20. In particular, the Fifth Circuit disagreed with the 
distinction drawn by the five-judge panel between exclud- 
able and deportable aliens (see App., infra, 42a). Thus, the 
Fifth Circuit concluded that the case before it, which in- 
volved a deportable alien who previously had been admitted 
to the United States, should not be distinguished from its 
own prior decision in Gisbert v. United States Attorney 
General, 988 F.2d 1437 (1993), and the Ninth Circuit’s en 
banc decision in Barrera-Echavarria, which sustained the 
post-final-order detention of excludable Mariel Cubans who 
never entered the United States and who therefore had a 
greatly diminished claim to due process in connection with 
their removal. 

15 The Fifth Circuit reasoned that, although 
permanent resident status entitles an alien to greater 
procedural due process protection in determining whether 
he is entitled to remain in the United States, such an alien 
does not have a “broadly privileged constitutional status 
relative to excludable aliens” concerning his detention once 
it is finally determined that he no longer has a right to 
remain in the United States. 185 F.3d at 295. The court also 
held that once a final order of removal is entered, “the 
national interest in effectuating deportation is identical 

15 In an even more recent decision involving an excludable Mariel 
Cuban, the Seventh Circuit held that the alien’s several criminal convic- 
tions supported the Attorney General’s decision to continue to detain him 
and that such detention was not unconstitutional. Carrera-Valdez v. 
Perryman, 211 F.3d 1046, 1048 (7th Cir. 2000). 

26 

regardless of whether the alien was once resident or exclud- 
able.” Id. at 296; see id. at 288-290, 294-297. 

16 

c. The constitutional rulings in Ho and Zadvydas demon- 
strate that the Ninth Circuit erred in this case in concluding 
that a time limitation should be read into Section 1231(a)(6) 
in order to avoid a serious constitutional question. The 
comprehensive administrative procedures for review of the 
detention of respondent (and that of any aliens similarly 
situated) foreclose any characterization of his detention as 
permanent or indefinite. As the Third Circuit held in Chi 
Thon Ngo v. INS, 192 F.3d 390 (1999) (Ngo), the new interim 
procedures satisfy due process because they “provide rea- 
sonable assurance of fair consideration” of an alien’s suit- 
ability for release pending his removal from the United 
States. Id. at 399; cf. Barrera-Echavarria, 44 F.3d at 1450. 
Under current regulations, aliens like respondent may re- 
quest a formal custody review by the INS District Director 
at any time, 8 C.F.R. 241.4, 241.5. In determining whether 
an alien shall be released from detention, the District Direc- 
tor may consider: the nature and seriousness of the alien’s 
criminal convictions; the alien’s other criminal history; sen- 
tence(s) imposed and time actually served; the alien’s history 
of failure to appear; the alien’s probation history; disciplinary 
problems while incarcerated; evidence of rehabilitative effort 

16 The Third Circuit held in Ngo, which involved an excludable rather 
than a deportable alien, see note 14, supra, that criminal aliens may be 
detained for lengthy periods of time without violating due process when 
removal is beyond the control of INS, if the INS provides individualized 
periodic review of the alien’s eligibility for release based on a current 
assessment of the risk of danger or flight posed by the alien if released. 
192 F.3d at 398. The Third Circuit acknowledged the ruling by the five- 
judge district court panel in this case, but declined to follow it, stating that 
INS’s then-recently implemented interim procedures providing for peri- 
odic and centralized review appeared on their face to satisfy any pro- 
cedural due process concerns. Id. at 399. 

27 

or recidivism; equities in the United States; and prior immi- 
gration violations and history. 8 C.F.R. 241.4. As a supple- 
ment to that regulatory framework, the INS established 
procedures in February 1999 under which the custody status 
of detained aliens whose removal is not immediately possible 
or practicable will be subject to sua sponte review by the 
INS during the initial 90-day removal period and (if the alien 
is not released at the end of that 90-day period) periodically 
thereafter. App., infra, 64a-68a. 

In addition, in August 1999, after the joint order of the 
district court in this case but before the ruling on respon- 
dent’s individual request for habeas relief, the Attorney 
General and the Commissioner of the INS instituted still 
further procedures, which include centralized review by INS 
headquarters of the custody status of detainees in respon- 
dent’s position. See App., infra, 69a-76a. Those new interim 
procedures, which were effective immediately and operate 
pending anticipated permanent changes to the regulations 
themselves, instituted a two-level custody review for aliens 
subject to detention under Section 1231(a)(6) after the initial 
90-day removal period. Written notice must be given to the 
alien 30 days in advance of review, informing the alien of the 
factors that will be considered in making a custody 
determination, and explaining that the alien will have an 
opportunity to demonstrate that he is not a flight risk or a 
danger to the community. Ibid.; see also 8 C.F.R. 241.4. An 
interview of the alien is mandatory at the first custody 
review after the 90-day review, and the District Director’s 
determination following the interview is subject to review 
by a specialized team in INS headquarters, in order to 
ensure consistency of decisions and an independent assess- 
ment outside the local district. App., infra, 71a. The head- 
quarters panel may ratify the District Director’s decision, 
return the case to the District Director for reconsideration, 
or determine that additional information is required. Ibid. 

28 

After the District Director reviews his decision in light of 
INS headquarters’ evaluation, he will notify the alien of the 
final custody determination within 30 days of completion of 
the headquarters review. Ibid. 

17 The INS thereafter con- 
ducts custody reviews, alternating between District Director 
file reviews and a review that includes an interview at the 
alien’s request followed by a District Director determination 
that is subject to INS headquarters review. Id. at 73a. In 
addition to these sua sponte custody reviews by the INS, an 
alien detained under Section 1231(a)(6) may continue to 
request a custody review at any time under 8 C.F.R. 
236.1(d)(2)(ii) and 241.4(a). 

On June 30, 2000, the INS proposed regulations to revise 
the procedures established in the current regulations and 
the memoranda issued by the INS in February and August 
1999, and to establish permanent procedures for post-order 
custody review cases. 65 Fed. Reg. 40,540-40,548. The new 
regulations would establish a custody review program for 
aliens such as respondent modeled after the regulations 
establishing the Cuban Review Plan, which governs the 
review of excludable Mariel Cubans who are in INS custody 
and whose removal to Cuba is not currently possible or 
practicable. See 8 C.F.R. 212.12. The regulations, which are 
subject to a 30-day notice-and-comment period, will, if 
adopted as proposed, permit a comprehensive and fair 
review of the continued detention of aliens through a process 
that “is intended to balance the need to protect the Ameri- 
can public from potentially dangerous aliens, who remain in 
the United States contrary to law, with the humanitarian 
problems created by another country’s unjustified delay or 
refusal to accept repatriation of its nationals.” 65 Fed. Reg. 

17 After the INS’s review of respondent under those procedures, the 
INS determined that respondent should be detained until the next 
periodic review. App., infra, 87a-89a. 

29 

at 40,540. The new procedures consist of a file review with 
the opportunity for a panel interview and recommendation, 
and a final decision by a separate INS Headquarters unit. 

3. The court of appeals’ opinion cannot be reconciled with 
this Court’s jurisprudence holding that the judiciary has a 
limited role in reviewing the enforcement of immigration 
laws because of the integral connection of such laws to the 
nation’s foreign relations. See, e.g., Aguirre-Aguirre, 526 
U.S. at 425 (“judicial deference to the Executive Branch is 
especially appropriate in the immigration context where 
officials ‘exercise especially sensitive political functions that 
implicate questions of foreign relations’ ”). 

The court of 

appeals may have believed that it would be better policy to 
condition post-order detention on the willingness of another 
country to accept back its nationals. In so holding, however, 
it has wrongly ousted Congress’s authority to determine and 
to adjust the Nation’s immigration laws in response to 
changed world conditions and domestic priorities and to vest 
in the Executive the sometimes delicate and difficult task of 
pressing for repatriation of another nation’s citizens within 
the overall context of this Nation’s foreign relations. See 
Mathews v. Diaz, 426 U.S. 67, 81 (1976) (recognizing that “a 
wide variety of classifications [in immigration laws] must be 
defined in the light of changing political and economic cir- 
cumstances”); Carlson v. Landon, 342 U.S. 524, 534-536 
(1952). As both the Fifth and Third Circuits have empha- 
sized, even though aliens can claim some constitutional pro- 
tections, “the power of the national government to act in the 
immigration sphere is * * * essentially plenary,” and as 
such, is “largely immune from judicial inquiry or inter- 
ference.” Zadvydas, 185 F.3d at 289 (quoting Harisiades v. 
Shaughnessy, 342 U.S. 580, 589 (1952)); see also Ngo, 192 
F.3d at 395-396. 

Finally, the court of appeals’ assertion that a “reasonable 
time” may be measured by the presence or absence of a re- 

30 

patriation agreement alone underscores its flawed analysis. 
Such formal agreements are rare. See note 9, supra. More- 
over, the court of appeals’ ruling could be misinterpreted to 
imply that the United States thinks removal of criminal 
aliens to Cambodia is futile, which is contrary to the position 
of the United States, speaking with one voice through the 
Executive Branch. 

CONCLUSION 

The petition for a writ of certiorari should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

DONALD KEENER 
QUYNH VU 

Attorneys 

JULY 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
NINTH CIRCUIT 

No. 99-35976 

KIM HO MA, PETITIONER-APPELLEE 

v. 

JANET RENO, ATTORNEY GENERAL; AND ROBERT C. 
SMITH, DISTRICT DIRECTOR OF THE IMMIGRATION AND 

NATURALIZATION SERVICE, SEATTLE, WASHINGTON, 
RESPONDENTS-APPELLANTS 

Appeal from the United States District Court 
for the Western District of Washington 

Decided: April 10, 2000 

Before: REINHARDT, THOMPSON, and T.G. NELSON, 

Circuit Judges. 

REINHARDT, Circuit Judge: 

Petitioner Kim Ho Ma is an alien who left his native 
land, Cambodia, as a refugee at the age of two and has 

(1a) 

2a 

resided in the United States as a legal permanent re- 
sident since he was six. At the age of seventeen he was 
involved in a gang-related shooting, and was convicted 
of manslaughter. After completing his prison sentence 
some two years later, he was taken into INS custody 
and ordered removed because of that conviction. How- 
ever, the INS has been unable to remove him, and 
hundreds of others like him, because Cambodia does not 
have a repatriation agreement with the United States 
and therefore will not permit Ma’s return.1 The 
question before us is whether, in light of the absence of 
such an agreement, the Attorney General has the legal 
authority to hold Ma, who is now twenty two, in de- 
ention indefinitely, perhaps for the remainder of his life. 

Ma challenged his detention by filing a petition for 
habeas corpus, under 28 U.S.C. § 2241, in the District 
Court for the Western District of Washington. That 
court ruled that Ma’s continued detention violates his 
substantive due process rights under the Fifth Amend- 
ment.2 Respondents, the Immigration and Naturali- 

1 There are also many aliens from Laos and Vietnam who can- 
not be removed because our government has no repatriation 
agreement with those countries. 

2 In the district court in which Ma sought relief, over one 
hundred habeas corpus petitioners challenged their ongoing de- 
tention by the INS in cases similar to his. The district court 
designated five lead cases that presented issues common to all 
petitioners and directed the parties to brief and argue those issues 
before five district court judges. The five district court judges 
issued a joint order establishing a legal framework to apply in each 
individual case. A single judge then applied this ruling to Ma and 
held that he should be released. Similar cases involving a large 
number of habeas petitioners have arisen in Nevada, and the 
Central, Eastern, and Southern Districts of California. 

3a 

zation Service, Janet Reno (as Attorney General), and 
Robert Coleman (as INS Acting District Director in 
Seattle) (hereinafter collectively referred to as “INS”) 
appeal the district court’s decision releasing Ma from 
INS custody. We have jurisdiction3 and affirm, but on a 
different basis. 

We hold that the INS lacks authority under the 
immigration laws, and in particular under 8 U.S.C. 
§ 1231(a)(6), to detain an alien who has entered the 
United States for more than a reasonable time beyond 
the normal ninety day statutory period authorized for 
removal. More specifically, in cases like Ma’s, in which 
there is no reasonable likelihood that the alien will be 
removed in the reasonably foreseeable future, we hold 

3 Although neither party has argued either that the district 
court lacked jurisdiction over Ma’s constitutional claims or that 
this court lacks jurisdiction to hear this appeal, the INS argued at 
one point in its brief that the general federal habeas statute, 28 
U.S.C. § 2241, does not provide jurisdiction to hear any claim of 
statutory error or abuse of discretion. However, our recent 
decision in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), 
makes clear that the scope of review under the general federal 
habeas statute, 28 U.S.C. § 2241, has not been limited by 8 U.S.C. 
§ 1252, because that section does not mention habeas corpus 
explicitly. Id. at 609 (citing Felker v. Turpin, 518 U.S. 651, 116 S. 
Ct. 2333, 135 L.Ed.2d 827 (1996)). Claims of statutory error and 
abuse of discretion in the application of the immigration laws have 
long been cognizable on habeas corpus. See Magana-Pizano, 200 
F.3d at 609 (holding that general habeas statute allows review of 
statutory questions); United States ex rel. Accardi v. Shaughnessy, 
347 U.S. 260, 74 S. Ct. 499, 98 L.Ed. 681 (1954) (reviewing denial of 
discretionary relief (suspension of deportation) on the merits, and 
reversing on ground that discretion was not exercised consistent 
with the statute). Thus, we hold that 8 U.S.C. § 1252 does not 
preclude us from considering Ma’s non-constitutional arguments on 
habeas corpus. 

4a 

that it may not detain the alien beyond that statutory 
removal period. Because we construe the statute as not 
permitting the indefinite detention of aliens like Ma, we 
need not decide the substantial constitutional questions 
raised by the INS’s indefinite detention policy. 

I. 

Petitioner Kim Ho Ma’s family fled Cambodia in 1979 
and took Ma, who was then two years old, with them. 
After spending over five years in refugee camps, Ma’s 
family lawfully entered the United States in 1985 as 
refugees. Ma’s status was adjusted to that of a lawful 
permanent resident in 1987. In 1996, he was convicted, 
by a jury, of first degree manslaughter following a 
gang-related shooting. He was sentenced to 38 months 
in prison, but eventually served only 26 after receiving 
credit for good behavior. He was tried as an adult, 
although he was only seventeen years of age at the time 
of the crime. Although the INS repeatedly refers to 
Ma’s criminal record, this was his only criminal con- 
viction. 

Ma’s conviction made him removable as an alien 
convicted of certain crimes under 8 U.S.C. § 1227(a)(2). 
Because he was released by the state authorities 
after April 1, 1997, the INS’s authority to take him into 
custody was governed by the permanent custody rules 
of the Illegal Immigration Reform and Immigrant Re- 
sponsibility Act of 1996 (IIRIRA) (codified at 8 U.S.C. 
§ 1231). The INS took Ma into custody following his 
release from prison and initiated removal proceedings 
against him. An immigration judge found Ma remov- 
able, and furthermore found him ineligible for asylum 
or withholding of deportation because of his conviction. 

5a 

Ma appealed this ruling to the Board of Immigration 
Appeals (BIA). The BIA affirmed the immigration 
judge’s decision. Although Ma’s order of removal 
became final on October 26, 1998, the INS could not 
remove him within the ninety day period during which 
it is authorized to do so because the United States had, 
and still has, no repatriation agreement with Cambodia. 
As a result, Ma remained in detention until he filed this 
petition for a writ of habeas corpus, which was granted 
by the district court on September 29, 1999. He is now 
twenty-two and has been in custody (and, but for the 
district court’s decision, would have been incarcerated) 
for nearly five years, although his sentence accounts for 
only a little over two years of that period. 

In addition to filing the habeas petition we now 
review, Ma made several other attempts to secure his 
release. During the pendency of the proceedings 
before the immigration judge and the BIA, Ma filed two 
motions to be released on bond—in October and 
December 1997. In both instances an immigration 
judge denied Ma’s requests, finding, based solely on the 
offense he committed at the age of seventeen, that 
although he was not a flight risk, he was a danger to the 
community. 

In May 1999, over six months after Ma’s final re- 
moval order (and after his habeas petition was filed), 
the INS, by letter, requested travel documents for Ma 
from the Cambodian government.4 The next day, the 
INS conducted the “ninety day” custody review, as 

4 The Cambodian government denied the request, as it does 
all such requests, because of the absence of a repatriation agree- 
ment. 

6a 

provided for in its regulations, to determine if Ma 
should be released on bond.5 An INS officer prepared a 
report after interviewing Ma and reviewing letters and 
other materials submitted by his family and friends. 
The officer’s report stated that Ma’s family was “very 
supportive,” and that if Ma was released he would be 
able to assist his handicapped 71 year old father in 
everyday activities. The report also stated that Ma 
constantly communicates with his younger brother to 
assure that his brother “does not follow in his foot- 
steps.” In addition, the report noted that Ma’s older 
brother runs his own business and would employ Ma if 
he were released from custody. A deputy district 
director then reviewed the INS officer’s report and 
issued a decision denying Ma’s release. The decision 
was sent to Ma by means of a form letter that stated 
that the deputy director made his decision after con- 
sidering a set of factors set out in INS regulations;6 
however the letter neither stated reasons nor discussed 
which factors were relied upon in reaching the decision 
to deny Ma’s release. The letter added that “there is no 
appeal from this decision.” 7 

On September 30, 1999, pursuant to additional inter- 
nal regulations, the INS again reviewed its decision to 

5 Internal INS regulations (known as the “Pearson I” regula- 
tions) required that Ma’s case be reviewed before the end of the 
ninety day period. However, Ma received his custody review 
approximately 100 days after that period had run (190 days after 
his removal order became final). 

6 8 C.F.R. § 241.4. 

7 The letter also stated that Ma’s case would be reviewed 
again six months from the date of the letter, on December 2, 1999. 
It also stated that Ma had the right to submit a request for re- 
determination of his custody status at any time. 

7a 

continue detaining Ma.8 Once again, INS officials found 
that Ma should remain in detention, based on the 
seriousness of his conviction and also on the ground of 
his threatened participation in a hunger strike while in 
custody. The reviewers stated that they were unable 
to conclude that Ma would “remain non-violent” and 
abide by the terms of his release. These decisions were 
made despite abundant information in the admini- 
strative record about Ma’s relationships with his 
parents and siblings, employment prospects, and plans 
to avoid gang relations and criminal behavior. Upon 
reviewing Ma’s habeas petition, the district court ruled 
that Ma’s detention was unconstitutional on “substan- 
tive due process” grounds and ordered him released 
pending the outcome of this appeal. This court and the 
Supreme Court denied the INS’s requests for a stay of 
the district court’s release order.9 The INS now 
appeals the district court’s decision granting Ma’s ha- 
beas corpus petition. 

8 After Ma and the other four lead petitioners prevailed in 
district court, the INS implemented additional regulations, known 
as the “Pearson II” regulations, which provided for additional re- 
view of custody decisions. These regulations provide for review of 
the decisions of district directors by INS Headquarters, which was 
then done in this case. 

9 The INS sought to stay the district court’s release order. 
The district court denied the order but granted the INS a tem- 
porary stay so that it might attempt to secure an emergency stay 
from this court. We denied the stay. The INS filed a second 
emergency stay request, pending appeal to the Supreme Court. 
We again denied the stay and ordered Ma released. He was 
released that evening. The INS then sought a stay from the 
Supreme Court. Justice O’Connor ordered a temporary stay 
pending a review by the whole Court. Ma surrendered to INS 
custody pending the Court’s decision. The Court denied the INS’s 
stay request, and Ma was again ordered released. 

8a 

II. 

Although the bulk of the parties’ arguments, as 
well as the district court’s ruling, address the consti- 
tutionality of the INS’s detention policy, we must first 
determine whether Congress provided the INS with 
the authority to detain Ma indefinitely, as the Attorney 
General contends. 

In general, after an alien is found removable, the 
Attorney General is required to remove that alien 
within ninety days after the removal order becomes 
administratively final. 

10 Many aliens, however, cannot 
be removed within the ninety day period for various 
reasons. First, some individual cases may simply re- 
quire more time for processing. Second, there are cases 
involving aliens who have been ordered removed to 
countries with whom the United States does not have 
a repatriation agreement, such as Cambodia, Laos, and 
Vietnam. Finally, there may be those aliens whose 
countries refuse to take them for other reasons, and yet 
others who may be effectively “stateless” because of 
their race and/or place of birth. 

11 Ma falls in the second 

category. 
10 See 8 U.S.C. § 1231(a)(1)(A)-(B). If the removal order is 
stayed pending judicial review, the ninety day period begins run- 
ning after the reviewing court’s final order. 8 U.S.C. § 1231(a)(1) 
(B)(ii). 

11 See, e.g., Caranica v. Nagle, 28 F.2d 955 (9th Cir.1928) 
(involving deportation order to Greece of alien born in Macedonia, 
which was then a Turkish province that was later partitioned 
among several countries, including Greece, where Greece would 
not recognize alien as a citizen). 

9a 

Under the statute, aliens who cannot be removed at 
the end of ninety days fall into two groups. Those in 
the first group must be released subject to supervisory 
regulations that require them, among other things, to 
appear regularly before an immigration officer, provide 
information to that official, notify INS of any change in 
their employment or residence within 48 hours, submit 
to medical and psychiatric testing, and comply with 
substantial restrictions on their travel. 8 U.S.C. 
§ 1231(a)(3). Those in the second group “may be de- 
tained beyond the removal period” and, if released, 
shall be subject to the same supervisory provisions 
applicable to aliens in the first group. 8 U.S.C. 
§ 1231(a)(6). 

12 Aliens in the second group include, 
among others, persons removable because of criminal 
convictions (such as drug offenses, certain crimes of 
moral turpitude, “aggravated felonies,” firearms of- 
fenses, and various other crimes). 8 U.S.C. § 1227(a)(2). 
Ma’s criminal conviction places him in the second group. 

INS argues that its authority to “detain beyond the 
removal period” gives it the authority to detain inde- 
finitely aliens who fall in the second group and who can- 
not be removed in the reasonably foreseeable future. 

13 

12 The sub-section provides in full that 

[a]n 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 deter- 
mined 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). 

48 U.S.C. § 1231(a)(6). 

13 Although we recognize that, in general, the Attorney 
General’s interpretation of the immigration laws is entitled to 

10a 

Ma argues the opposite—that the INS’s authority to 
detain aliens beyond the removal period does not 
extend to cases in which removal is not likely in the 
reasonably foreseeable future. On its face, the statute’s 
text compels neither interpretation: while § 1231(a)(6) 
allows for the detention of group two aliens “beyond” 
ninety days, it is silent about how long beyond the 
ninety day period such detention is authorized. Thus, 
any construction of the statute must read in some 
provision concerning the length of time beyond the 
removal period detention may continue, whether it be 
“indefinitely,” “for a reasonable time,” or some other 
temporal measure. 

We hold that Congress did not grant the INS 
authority to detain indefinitely aliens who, like Ma, 
have entered the United States and cannot be removed 
to their native land pursuant to a repatriation agree- 
ment. To the contrary, we construe the statute as 

substantial deference, INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 
119 S. Ct. 1439, 143 L.Ed.2d 590 (1999), we have held that Chevron 
principles (Chevron U.S.A. v. Natural Resources Defense Council, 
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) are not appli- 
cable where a substantial constitutional question is raised by an 
agency’s interpretation of a statute it is authorized to construe. 
Williams v. Babbitt, 115 F.3d 657, 661-63 (9th Cir. 1997) (analyzing 
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades 
Council, 485 U.S. 568, 108 S. Ct. 1392, 99 L.Ed.2d 645 (1988) and 
Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 
(1991), noting the agency’s lack of constitutional expertise, and 
concluding that “just as we will not infer from an ambiguous 
statute that Congress meant to encroach on constitutional boun- 
daries, we will not presume from ambiguous language that Con- 
gress intended to authorize an agency to do so”). As we explain 
infra, the agency’s interpretation raises just such a substantial 
question. 

11a 

providing the INS with authority to detain aliens only 
for a reasonable time beyond the statutory removal 
period. 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, we conclude that 
the statute does not permit the Attorney General to 
hold the alien beyond the statutory removal period. 
Rather, the alien must be released subject to the 
supervisory authority provided in the statute. 

We adopt our construction of the statute for several 
reasons. First, and most important, the result we reach 
allows us to avoid deciding whether or not INS’s inde- 
finite detention policy violates the due process guaran- 
tees of the Fifth Amendment. Second, our reading is 
the most reasonable one—it better comports with the 
language of the statute and permits us to avoid assum- 
ing that Congress intended a result as harsh as inde- 
finite detention in the absence of any clear statement to 
that effect. Third, reading an implicit “reasonable time” 
limitation into the statute is consistent with our case 
law interpreting a similar provision in a prior immi- 
gration statute. Finally, the interpretation we adopt is 
more consonant with international law. 

14 

III. 

The Supreme Court has long held that courts should 
interpret statutes in a manner that avoids deciding 

14 Petitioner also contests the procedures used by INS when 
considering his requests for release, asserting that they violate 
procedural due process. Given our holding, we need not reach that 
constitutional question either. 

12a 

substantial constitutional questions. DeBartolo Corp. v. 
Florida Gulf Coast Bldg. & Constr. Trades Council, 
485 U.S. 568, 575, 108 S. Ct. 1392, 99 L.Ed.2d 645 (1988); 
United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S. 
Ct. 658, 60 L.Ed. 1061 (1916); see also United States v. 
Bulacan, 156 F.3d 963, 974 (9th Cir. 1998). We have 
referred to this rule as a “paramount principle of judi- 
cial restraint.” United States v. Restrepo, 946 F.2d 654, 
673 (9th Cir. 1991). 

In the immigration context, courts have often read 
limitations into statutes that appeared to confer broad 
power on immigration officials in order to avoid 
constitutional problems. For example, in United States 

v. Witkovich, 353 U.S. 194, 199, 77 S. Ct. 779, 1 L.Ed.2d 
765 (1957), the Court read a limitation into a statute 
authorizing the INS to ask questions and receive infor- 
mation from deportable aliens within the United States. 
Because constitutional problems would have arisen if 
the statute were read as penalizing aliens who refused 
to answer questions that were irrelevant to any legiti- 
mate governmental purpose, the Court chose to read a 
limitation into the statute. Witkovich, 353 U.S. at 199, 
77 S. Ct. 779. 

We followed Witkovich in Romero v. INS, 39 F.3d 
977 (9th Cir. 1994), which involved an alien who had lied 
to an INS official, thereby rendering her deportable be- 
cause she violated a condition of her immigration 
status. The condition required that she answer truth- 
fully all questions put to her by INS officials. However, 
the questions she did not answer truthfully were 
irrelevant to her visa status. Although the provision at 
issue stated that aliens who failed to comply with the 
conditions of their status were deportable, without 

13a 

defining those conditions in any way, we read into the 
statute a limitation on the kinds of conditions that the 
Attorney General could place on aliens. Id. at 979-80. 
Invoking the canon of constitutional avoidance, we con- 
cluded that the alien could not be required to answer 
questions having nothing to do with her visa status. Id. 
at 981; cf. Jean v. Nelson, 472 U.S. 846, 854-56, 105 S. 
Ct. 2992, 86 L.Ed.2d 664 (1985) (holding that immi- 
gration parole regulation does not permit race discrimi- 
nation in order to avoid reaching constitutional ques- 
tion); Tashima v. Administrative Office of the U.S. 
Courts, 967 F.2d 1264, 1271 (9th Cir. 1992) (interpreting 
statute stating that Office “may” provide representa- 
tion to judges as requiring interpretation based upon 
criteria not listed in the statute, in order to avoid 
constitutional problems). 

Of course, as the Supreme Court has noted re- 
peatedly when formulating the canon of constitutional 
avoidance, the rule applies when the constitutional 
issue at hand is a substantial one. 

15 The INS contends 
that the answer to Ma’s constitutional challenge is 

15 The Court has also described the canon as applying to 
“difficult,” “serious,” or “grave” constitutional issues. See, e.g., 
United States v. Winstar Corp., 518 U.S. 839, 875, 116 S. Ct. 2432, 
135 L.Ed.2d 964 (1996); Allentown Mack Sales v. NLRB, 522 U.S. 
359, 387, 118 S. Ct. 818, 139 L.Ed.2d 797 (1998) (Rehnquist, CJ, 
concurring in part and dissenting in part); Jones v. United States, 
526 U.S. 227, 239, 119 S. Ct. 1215, 143 L.Ed.2d 311 (1999). Re- 
gardless of the terminology used, the point seems to be the same: a 
party cannot force us to ignore the usual canons of statutory con- 
struction by raising a frivolous, insubstantial, or patently incorrect 
constitutional argument. Nor, as the Court put it in United States 

v. Locke, 471 U.S. 84, 96, 105 S. Ct. 1785, 85 L.Ed.2d 64 (1985), may 
we resort to “disingenuous evasion” in our interpretation of the 
statute to avoid a constitutional question. 

14a 

dictated by a straightforward application of our en banc 
decision in Barrera-Echavarria v. Rison, 44 F.3d 1441 
(9th Cir. 1995) (en banc), and the Supreme Court’s de- 
cision in Shaughnessy v. United States ex rel. Mezei, 
345 U.S. 206, 73 S. Ct. 625, 97 L.Ed. 956 (1953). 

16 If this 
were correct, we would not need to invoke the canon of 
constitutional avoidance. However, those cases deal 
with a significantly different problem from the one we 
avoid here. Both Mezei and Barrera-Echavarria 
involved excludable aliens rather than aliens who have 
already entered the United States. As a result, the 
constitutional analysis in both cases rests on a doctrine 
known as the “entry fiction,” which authorizes the 
courts to treat an alien in exclusion proceedings as one 
standing on the threshold of entry, and therefore not 
entitled to the constitutional protections provided to 
those within the territorial jurisdiction of the United 
States. Both decisions were entirely explicit in their 
reasoning on this point. In Mezei, the Court relied on 
the entry fiction (that an excludable alien has not 
entered the United States) in holding that an 
excludable alien is not entitled to procedural due 
process: 

It is true that aliens who have once passed through 
our gates, even illegally, may be expelled only after 
proceedings conforming to traditional standards of 

16 The INS also makes repeated reference to Carlson v. 
Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L.Ed. 547 (1952). However, 
Carlson upheld the constitutionality of detention pending the 
INS’s decision whether to deport an alien, and expressly noted 
that the problem of “unusual delay” was not before it, and refer- 
enced a case involving a Russian petitioner who alleged that his 
country would not accept his return. Id. at 546, 72 S. Ct. 525 
(citing United States ex rel. Potash v. District Director, 169 F.2d 
747, 748 (2d Cir.1948)). 

15a 

fairness encompassed in due process of law. But an 
alien on the threshold of initial entry stands on a 
different footing: Whatever the procedure author- 
ized by Congress is, it is due process as far as an 
alien denied entry is concerned. . . . 

Neither respondent’s harborage on Ellis Island 
nor his prior residence here transforms this into 
something other than an exclusion proceeding. 

Id. at 212-13, 73 S. Ct. 625 (internal citations omitted). 
While the Court held that Mezei could be detained 
indefinitely on Ellis Island, because no country would 
take him back, it rested its holding on the fact that 
Mezei’s exclusion did not violate the immigration 
statute, and that as an alien who had not yet entered 
the country he had no other rights. 

17 

We followed Mezei in Barrera-Echavarria, which 
involved a Mariel Cuban who was detained while ex- 
cluded from the U.S. 

18 After describing the petitioner’s 

17 Although the INS notes that the plaintiff in Mezei was 
previously a lawful resident of the U.S. for twenty-five years, the 
Court made clear that he was to be treated as an excludable alien 
because of his long departure from the U.S., and could not have his 
status “assimilated” to that of a permanent resident. In doing so, 
the Court distinguished, on its facts, its then-recent decision in 
Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S. Ct. 472, 97 L.Ed. 
576 (1953), which authorized such assimilation of status under some 
circumstances. Mezei, 345 U.S. at 213-14, 73 S. Ct. 625. There is no 
doubt that Mezei was considered by the Court to be an excludable 
alien who had not entered the U.S., despite what the Court 
referred to as his “prior residence here.” See Mezei at 212-13, 73 S. 
Ct. 625. 

18 Barrera-Echavarria was paroled while excluded, committed 
numerous crimes, and thereafter was taken back into custody. 
Barrera-Echavarria, 44 F.3d at 1444. His parole did not constitute 

16a 

argument and noting our disagreement, we began our 
analysis by relying on the historic distinction between 
excludable and resident aliens: 

The Supreme Court has consistently recognized that 
our immigration laws have long made a distinction 
between those aliens who have come to our shores 
seeking admission . . . and those who are within 
the United States after an entry, irrespective of its 
legality. In the latter instance, the Court has recog- 
nized additional rights and privileges not extended 
to those in the former category. 

Barrera-Echavarria, 44 F.3d at 1448 (quotations omit- 
ted, alteration in original). We also quoted a passage 
from Landon v. Plasencia, 459 U.S. 21, 32, 103 S. Ct. 
321, 74 L.Ed.2d 21 (1982), stating that “once an alien 
gains admission to our country and begins to develop 
the ties that go with permanent residence, his con- 
stitutional status changes accordingly.” Barrera- 
Echavarria, 44 F.3d at 1449. 

19 Shortly after this 

quotation, we noted that 
Noncitizens who are outside United States terri- 
tories enjoy very limited protections under the 
United States Constitution. [citing United States v. 
Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 
L.Ed.2d 222 (1990) and Johnson v. Eisentrager] 
Because excludable aliens are deemed under the 
entry doctrine not to be present on United States 

an entry. Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S. Ct. 1072, 
2 L.Ed.2d 1246 (1958). 

19 Amici Law Professors note in their brief that in its petition 
for rehearing en banc which led to the Barrera-Echavarria de- 
cision the INS relied on the fact that the petitioner was an alien 
seeking admission (rather than one who had entered). 

17a 

territory, a holding that they have no substantive 
right to be free from immigration detention reason- 
ably follows. 

Barrera-Echavarria, 44 F.3d at 1450. 

Thus, it is not surprising that Barrera-Echavarria 
upheld as constitutional the long-term detention of 
aliens who had not entered the United States, legally or 
illegally (although they had been paroled into this 
country). As we stated in that case, it is “not settled” 
that excludable aliens have any constitutional rights at 
all, id. at 1449, so it is clear that they cannot prevail 
where the government refuses to admit them. 

20 In 

20 In Barrera-Echavarria, we concluded that the statutes 
there at issue, which applied only to the detention of excludable 
aliens, allowed for the long-term detention of such aliens, id. at 
1445, and went on to hold that such detention is constitutional. 
There is no inconsistency between our statutory holding in 
Barrera-Echavarria and our statutory holding here. We found the 
statutory authority to hold Barrera-Echavarria for a prolonged 
period implicit in the history and structure of several provisions 
granting broad discretion to the Attorney General to parole ex- 
cludable aliens into the country under certain circumstances. Id. at 
1445-48. We noted that the parole of excludable aliens had always 
been the exception rather than the rule, and that releasing such 
aliens into the country pending deportation would run contrary to 
the basic statutory scheme precluding such entry. Id. at 1447. In 
the case before us, we consider the entirely different question of 
aliens who have already entered the country. Thus, unlike in 
Barrera-Echavarria, there is no long-standing statutory scheme 
that would be “upset” by barring prolonged detention here. Id. at 
1446. Most important, because in Barrera-Echavarria the various 
statutory provisions at issue did not apply to the detention of 
aliens who had already entered the United States, there was no 
need to invoke the canon of constitutional avoidance. The 
constitutional result in Barrera-Echavarria was dictated by the 
Supreme Court’s holding in Mezei regarding excludable aliens. 

18a 

contrast to Mezei and Barrera-Echavarria, numerous 
cases establish that once an alien has “entered” U.S. 
territory, legally or illegally, he or she has consti- 
tutional rights, including Fifth Amendment rights. See, 

e.g., Mathews v. Diaz, 426 U.S. 67, 77, 96 S. Ct. 1883, 48 
L.Ed.2d 478 (1976) (stating that “[t]here are literally 
millions of aliens within the jurisdiction of the United 
States. The Fifth Amendment, as well as the Four- 
teenth Amendment, protects every one of these per- 
sons from deprivation of life, liberty, or property 
without due process of law. Even one whose presence 
in this country is unlawful, involuntary, or transitory is 
entitled to that constitutional protection.” (citations 
omitted)); Leng May Ma v. Barber, 357 U.S. 185, 187, 78 
S. Ct. 1072, 2 L.Ed.2d 1246 (1958) (stating that “our 
immigration laws have long made a distinction between 
those aliens who have come to our shores seeking 
admission, such as petitioner, and those who are within 
the United States after an entry, irrespective of its 
legality. In the latter instance the Court has recognized 
additional rights and privileges not extended to those in 
the former category who are merely ‘on the threshold 
of initial entry’ ”); cf. Plyler v. Doe, 457 U.S. 202, 102 S. 
Ct. 2382, 72 L.Ed.2d 786 (1982) (holding that illegal 
alien children have constitutional right to education). 

21 

21 The cases extending Fifth Amendment protection to aliens 
are fully consistent with our general jurisprudence granting signi- 
ficant constitutional protections to aliens within the territory of 
the United States. The Supreme Court has held that the Equal 
Protection Clause applies to aliens, Yick Wo v. Hopkins, 118 U.S. 
356, 369, 6 S. Ct. 1064, 30 L.Ed. 220 (1886), that the Fourth Amend- 
ment applies to aliens (within U.S. territory), Almeida-Sanchez v. 
United States, 413 U.S. 266, 274, 93 S. Ct. 2535, 37 L.Ed.2d 596 
(1973), and that the First Amendment applies to aliens. Bridges v. 
Wixon, 326 U.S. 135, 148, 65 S. Ct. 1443, 89 L.Ed. 2103 (1945) 

19a 

Unlike the petitioners in Mezei and Barrera-Echa- 
varria, Ma was admitted to and entered the United 
States as a refugee when he was a child, and has lived 
here ever since. He does not seek to “force us to admit 
him.” Mezei, 345 U.S. at 210, 73 S. Ct. 625. The cases 
involving indefinite detention of excludable aliens 
simply do not support the constitutionality of indefinite 
detention of aliens who have entered the United States. 
To the contrary, our case law makes clear that, as a 
general matter, aliens who have entered the United 
States, legally or illegally, are entitled to the protec- 
tions of the Fifth Amendment. 

22 

The INS also argues that Barrera-Echavarria and 
Mezei control the result here because, for constitutional 
purposes, an alien ordered removed has no further 
right to be here and therefore stands on essentially the 

(holding that “freedom of speech and of press is accorded aliens 
residing in this country”); Bridges v. California, 314 U.S. 252, 62 S. 
Ct. 190, 86 L.Ed. 192 (1941) (same). 

22 The INS cites Fong Yue Ting v. United States, 149 U.S. 698, 
711-13, 13 S. Ct. 1016, 37 L.Ed. 905 (1893), for the proposition that 
“[t]he power to exclude aliens, and the power to expel them, rest 
upon one foundation, are derived from one source, are supported 
by the same reasons, and are in truth but parts of one and the 
same power.” Id. at 713, 13 S. Ct. 1016. However, that proposition 
as applied to the distinction between the constitutional rights of 
deportable and excludable aliens is no longer good law. The Court 
in Fong Yue Ting went on to hold that aliens may be deported 
using processes exercised “entirely through executive officers.” 
Id. at 714, 13 S. Ct. 1016. That part of Fong Yue Ting’s holding was 
overruled ten years later, when the Supreme Court held that 
deportation proceedings for aliens within the U.S. must conform to 
due process. Yamataya v. Fisher, 189 U.S. 86, 101, 23 S. Ct. 611, 47 
L.Ed. 721 (1903). 

20a 

23 While this novel 
theory would dispose of the constitutional question 
raised by indefinite detention of such resident aliens, 
we cannot easily reconcile it with controlling case law. 
In particular, the INS’s position appears to be clearly 
inconsistent with the Supreme Court’s holding in Wong 
Wing that illegal aliens within the territorial juris- 
diction of the U.S. who had been ordered deported 
could not be put to hard labor prior to their deportation. 
Wong Wing v. United States, 163 U.S. 228, 238, 16 S. Ct. 
977, 41 L.Ed. 140 (1896). Although the INS argues 
that Wong Wing establishes only the proposition that 
irrational abuses against aliens who have been ordered 
deported are unjustified, Wong Wing makes clear that 
Congress deliberately created the hard labor policy “to 
promote its policy in respect to Chinese persons” 

23 We note that the Fifth Circuit relied on the INS’s argument 
in resolving the constitutional question we avoid today, holding 
that long-term detention of removable aliens who have been 
ordered deported does not violate substantive due process. Zad- 
vydas v. Underdown, 185 F.3d 279 (5th Cir. 1999). Although we 
seriously question the Fifth Circuit’s conclusion in that case, and in 
particular its reading of Wong Wing v. United States, 163 U.S. 228, 
238, 16 S. Ct. 977, 41 L.Ed. 140 (1896), and Landon v. Plasencia, 
459 U.S. 21, 32-34, 103 S. Ct. 321, 74 L.Ed.2d 21 (1982), we need not 
reach the constitutional question here. At the very least, it is clear 
from reading Zadvydas that a substantial constitutional question 
exists regarding the construction of § 1231(a)(6). 

Following oral argument, the Tenth Circuit considered the con- 
stitutional question in Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000), 
and, by a 2-1 vote, accepted the Fifth Circuit’s view. Moreover, 
the Tenth Circuit concluded that because § 1231(a)(6) was silent as 
to any time duration, “Congress intended to and expressly did 
authorize the Attorney General to indefinitely detain certain 
removable aliens.” Id. at 1057. For the reasons stated below, we 
do not find the Tenth Circuit’s reasoning persuasive. 

same footing as an excludable alien. 

21a 

(presumably by creating deterrence and encouraging 
voluntary departure). Wong Wing, 163 U.S. at 235, 237, 
16 S. Ct. 977. The Court said nothing about “irrational- 
ity,” only unconstitutionality. In short, it unanimously 
struck down, on Fifth Amendment grounds, Congress’ 
policy with respect to aliens who had been ordered de- 
ported even though that policy was passed in fur- 
therance of legitimate immigration goals. See also 
Landon v. Plasencia, 459 U.S. 21, 32-34, 103 S. Ct. 321, 
74 L.Ed.2d 21 (1982) (holding that resident alien has 
due process rights in exclusion proceedings because her 
“constitutional status” is greater than that of a first- 
time entrant); Johnson v. Eisentrager, 339 U.S. 763, 
771, 70 S. Ct. 936, 94 L.Ed. 1255 (1950) (holding that the 
Fifth Amendment grants rights to aliens within the 
territorial jurisdiction of the U.S., but not to those out- 
side the territory). In order to adopt the INS’s 
approach here, we would have to reconcile Wong Wing, 
which affords constitutional protection to aliens who 
have been ordered deported, with the INS’s suggested 
rule—which would (by extending the constitutional 
jurisprudence governing excludable aliens to such 
aliens) strip them of such protection. That would be a 
daunting, if not impossible, task. 

24 

24 The INS also argues that all immigration-related decisions 
are entitled to substantial deference under the plenary power, 
citing Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L.Ed.2d 1 
(1993). However, it is not clear what role the plenary power 
played in Flores. In that case, the Court found that rational basis 
review applied, noted that the plenary power was applicable, but 
then stated that “[o]f course, the INS regulation must still meet 
the (unexacting) standard of rationally advancing some legitimate 
governmental purpose.” Flores, 507 U.S. at 306, 113 S. Ct. 1439. 
Ma argues that the plenary power’s general deference rule does 
not apply in every case, citing INS v. Chadha, 462 U.S. 919, 940-41, 

22a 

It is clear that the INS’s effort to extend exclusion 
law to aliens who have entered the United States but 
have been ordered removed raises a substantial consti- 
tutional question, at the very least. Even if we were 
to agree with the Fifth Circuit’s constitutional 
holding—and we do not by any means suggest that we 
do—we would first be required to answer that question. 
As we may avoid doing so by giving the statute a 
construction that does not require us to undertake any 
constitutional inquiry, we follow that course here. 

We believe the construction of § 1231(a)(6) we 
adopt—that the INS may detain aliens who have 
entered the country but have been ordered removed 
only for “a reasonable time” beyond the ninety day 
statutory removal period, and specifically, that such 
aliens may not be detained beyond that statutory 

103 S. Ct. 2764, 77 L.Ed.2d 317 (1983) (striking down law gov- 
erning suspension of deportation, stating that “what is challenged 
here is whether Congress has chosen a constitutionally permissible 
means of implementing [the plenary] power. . . . Congress has 

plenary authority in all cases in which it has substantive legislative 
jurisdiction, so long as the exercise of that authority does not 
offend some other constitutional restriction.” (internal citation 
omitted)) and Hampton v. Mow Sun Wong, 426 U.S. 88, 99-101, 96 
S. Ct. 1895, 48 L.Ed.2d 495 (1976) (striking down Civil Service 
Commission’s blanket ban on employing non-citizens and rejecting 
contention that “the federal power over aliens is so plenary that 
any agent of the National Government may arbitrarily subject all 
resident aliens to different substantive rules from those applied to 
citizens”). It is not clear why the plenary power’s deference rule 
should apply here given that such deference was not afforded in 
Chadha or in Hampton. In any event, the Supreme Court’s cases 
make clear that the plenary power doctrine does not apply in the 
same way to each case to which it is relevant, and that its exercise 
is subject to constitutional restraints. 

23a 

removal period if there is no reasonable likelihood that 
their country of origin will permit their return in the 
reasonably foreseeable future—to be the most plausible 
reading of the statute. However, we note that, in order 
to avoid the substantial constitutional concerns pre- 
sented by the INS’s interpretation, we could adopt a 
strained construction of the statute, one that would not 
otherwise constitute sound statutory construction. As 
one of our learned colleagues recently explained, 

[S]tatutory construction and constitutional nar- 
rowing . . . are, in fact, very different animals. . . . 

Constitutional narrowing seeks to add a constraint 
to the statute that its drafters plainly had not meant 
to put there; it is akin to partial invalidation of the 
statute. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 
652-654, 104 S. Ct. 3262, 82 L.Ed.2d 487 (1984). In 
performing the former task we may not add any- 
thing to the statute that is not already there . . . in 
performing the latter function, we must do precisely 
that. . . . In performing our constitutional nar- 
rowing function, we may come up with any inter- 
pretation we have reason to believe Congress would 
not have rejected. 

United States v. X-Citement Video, Inc., 982 F.2d 1285, 
1295 n. 6 (9th Cir.) (Kozinski, J., dissenting), rev’d 513 
U.S. 64, 115 S. Ct. 464, 130 L.Ed.2d 372 (1994). In re- 
versing the majority, the Supreme Court endorsed our 
dissenting colleague’s approach, holding that a statute 
should be construed to avoid constitutional problems so 
long as the saving construction is not “plainly contrary 
to the intent of Congress.” 513 U.S. at 78, 115 S. Ct. 
464. The discussion which follows will make clear that 
the construction we adopt is by no means plainly con- 

24a 

trary to Congress’s intent, but is instead the most 
reasonable interpretation of the statute. 

IV. 

The interpretation we give section 1231(a)(6) is 
clearly the most reasonable one. The provision that the 
INS may hold individuals “beyond” a specified time 
demonstrates Congress’s intent that the otherwise 
applicable time limit not be deemed absolute in all 
cases, and that the agency have some flexibility in 
instances in which additional time may be useful. It 
does not demonstrate an intent to give the INS any 
greater authority than that—and certainly not an 
intent to permit the agency to hold people in detention 
for the remainder of their lives. Such is surely the case 
with respect to aliens who have entered the country 
and are generally entitled to the protections of our 
Constitution. It would indeed be surprising were 
Congress to attempt to authorize permanent or inde- 
finite detention of such persons simply by providing 
that they may be held beyond a ninety day period. 
Some greater degree of specificity or demonstration of 
Congressional intent would be necessary before we 
would conclude that a statute had granted the INS so 
sweeping a power with regard to persons who are 
generally subject to the protections of the Constitution. 
We cannot presume that Congress would authorize so 
drastic a limitation on the rights of such aliens by so 
indirect a means, particularly when it could have easily 
included express language to that effect in the statute. 

25 

25 In the prior statute, Congress used language prohibiting 
release (subject to some exceptions) rather than the language 
authorizing detention used here. See 8 U.S.C. § 1252(a)(2)(B) (1995) 

25a 

To sustain the INS’ indefinite detention theory we 
would be required to read far more into the statute 
than its language implies. In the simplest terms, to say 
that the INS may hold persons beyond a particular date 
does not answer the question “for how long?”. The 
proper reading, we conclude, is that Congress intended 
only that the short statutory period during which de- 
tention is ordinarily authorized not serve as an absolute 
barrier to a reasonable extension of time when circum- 
stances render an additional period necessary in order 
to accomplish the statutory purpose—the removal 
of the alien. Where no removal in the reasonably 
foreseeable future is possible, however, the statutory 
language, properly construed, does not authorize 
indefinite detention of such aliens. Because, here, there 
is no repatriation agreement and no demonstration of a 
reasonable likelihood that one will be entered into in 
the near future, we believe it to be not only the prudent 
but the correct interpretation of the statute to hold that 

(stating that the “Attorney General may not release [deportable 
aliens convicted of an aggravated felony ] . . . either before or 
after a determination of deportability [subject to some ex- 
ceptions].”) (emphasis added). The two custody provisions that 
succeeded the 1995 version of this law (and preceded the current 
version) did not change this language in any way relevant to our 
analysis. The same “may not release . . . either before or after” 
language was in both statutes. See AEDPA § 440(c); IIRIRA 
§ 303(b)(3) (the transitional custody rule). The prohibitory lan- 
guage used there is obviously far stronger than the permissive lan- 
guage used in the new law. More important, however, Congress is 
familiar with time limitations in the detention and removal context, 
and could easily have authorized detention “without limitation” or 
“indefinitely” if it so desired. See, e.g., 8 U.S.C. § 1231(a)(1)(A); 
1231(a)(1)(C); 1231(b)(2)(C); 1231(b)(2)(D); 1231(c)(3)(A); 1231(c) 
(3)(B) (all specifying various time periods in detention and removal 
context). 

26a 

Ma and others similarly situated aliens must be re- 
leased, under supervision, at the end of the statutory 
removal period. 8 U.S.C. § 1231(a)(1)(A). 

V. 

Our conclusion that a “reasonable time” limitation is 
implicit in the statute is supported by a venerable line 
of Ninth Circuit cases that held that a predecessor pro- 
vision must be construed as allowing only for detention 
“reasonably” beyond the removal period. 

Prior to 1952, the detention of aliens pending de- 
portation was governed by the Immigration Act of 
1917. That statute set no time limit to accomplish a 
deportation. The Act provided simply that deportable 
aliens should be “taken into custody and deported.” 

26 

Then, just as now, there were cases involving aliens 
who could not be deported for various reasons— 
because the U.S. had no repatriation agreement with 
their country, because their country would not take 
them back, or because they were stateless. In several 
cases, this court held that while the deportation order 
would remain valid indefinitely, detention was justified 
only for a reasonable period. For example, in Caranica 

v. Nagle, 28 F.2d 955 (9th Cir. 1928), the alien chal- 
lenged an order mandating his deportation to Greece on 
the ground that he was a Macedonian citizen, not a 
Greek citizen. Id. at 956. The court upheld the order, 
holding that the statute allowed for deportation to 
Greece. The court held that the Secretary of Labor had 

26 See An Act To Regulate the Immigration of Aliens to, and 
the Residence of Aliens in, the United States, ch. 29, § 19, 39 Stat. 
874, 889 (1917). 

27a 

broad discretion to find an appropriate country of 
deportation, but added that “the utmost the courts can 
or will do is to discharge the appellant from further 
imprisonment if the government fails to execute the 
order of deportation within a reasonable time.” Id. at 
957; see also Saksagansky v. Weedin, 53 F.2d 13, 16 (9th 
Cir. 1931) (upholding deportation order to Russia (but 
not to China) and holding that petitioner must be re- 
leased if he could not be deported to Russia); Wolck v. 
Weedin, 58 F.2d 928, 930-31 (9th Cir. 1932) (upholding 
deportation order, but ruling, consistent with admini- 
strative practice, that alien should be released if 
deportation could not be effected within a reasonable 
time). See also United States ex rel. Ross v. Wallis, 279 
F. 401, 403 (2d Cir. 1922) (requiring release if deporta- 
tion could not be effected within reasonable period). 

27 

We recognized the continuing vitality of this rule in a 
case applying the 1917 Act that we decided in 1954. 
Spector v. Landon, 209 F.2d 481 (9th Cir. 1954). In 
Spector, the petitioner was an alien who had been 
ordered deported in 1930, almost a quarter of a century 
earlier, and had been out on bond for most of the 
intervening period, but whose deportation the govern- 
ment had been unable to accomplish for various diplo- 
matic reasons. Id. at 482. He argued that as a result of 

27 Notably, the “reasonable time” allowed to effectuate de- 
portation in such cases seems to have been quite short by con- 
temporary standards. In Caranica the court held that a two 
month deadline was not an abuse of discretion, 28 F.2d at 957, 
while in Wolck the court gave the government thirty days to 
implement the order, 58 F.2d at 931; in Wallis the Second Circuit 
required release after four months. 279 F. at 404. 

28a 

the passage of time the deportation order was no longer 
valid. We rejected this contention, stating that 

No cases have been found by counsel holding that a 
deportation warrant becomes invalid or unen- 
forceable through mere lapse of time. . . . There 

are a number of decisions in habeas corpus to the 
effect that the right to hold the alien in custody 
under a deportation warrant persists for no more 
than a reasonable period. But such holdings lend no 
color to the contention made here. 

Id. (emphasis added) (citations omitted). Thus, even as 
we denied Spector’s claim, we recognized that the 1917 
Act did not authorize indefinite detention pending 
deportation even though the statute did not, by its 
terms, place any temporal limit on the government’s 
authority; we read the statute as containing an implicit 
provision that detention was authorized only for a 
“reasonable period.” 

While these older cases did not interpret a statute 
exactly like the one we consider today, because the 
1917 Act made no distinction between aliens whose re- 
lease following the removal period was required and 
aliens who could be detained following that period, both 
the 1917 statute and the current law provide for 
custody pending deportation and set forth no specific 
time limitations as to the period of detention. Although 
these older cases do not make their reasoning entirely 
explicit, they appear to rely on the principle that, when 
faced with the absence of an express time limitation, 
courts should ordinarily not assume that Congress 
intended a result as harsh and constitutionally dubious 
as indefinite detention. That principle seems as valid 
today as it was under the 1917 Act. We too are faced 

29a 

with a statute that does not contain an express statu- 
tory proscription against release. Like the courts 
interpreting the 1917 Act, we assume that the statute 
implicitly provides for a reasonable limitation on the 
length of detention. In doing so, we refuse to presume 
that Congress authorized the indefinite detention of 
resident aliens long after they have finished serving 
their sentence merely because their country does not 
have a repatriation agreement with the United States. 

VI. 

In interpreting the statute to include a reasonable 
time limitation, we are also influenced by amicus curiae 
Human Rights Watch’s argument that we should apply 
the well-established Charming Betsy rule of statutory 
construction which requires that we generally con- 
strue Congressional legislation to avoid violating inter- 
national law. Weinberger v. Rossi, 456 U.S. 25, 32, 102 
S. Ct. 1510, 71 L.Ed.2d 715 (1982) (citing Murray v. The 
Charming Betsy, 6 U.S. (2 Cranch) 64, 117-118, 2 L.Ed. 
208 (1804)). We have reaffirmed this rule on several 
occasions. In United States v. Thomas, 893 F.2d 1066, 
1069 (9th Cir. 1990), we explained that we adhere to 
this principle “out of respect for other nations.” Id. at 
1069 (citing Chua Han Mow v. United States, 730 F.2d 
1308, 1311 (9th Cir. 1984)); see also In re Simon, 153 
F.3d 991, 998 (9th Cir. 1998). 

We recently recognized that “a clear international 
prohibition” exists against prolonged and arbitrary 
detention. Martinez v. City of Los Angeles, 141 F.3d 

30a 

1373, 1384 (9th Cir. 1998). 

28 Furthermore, Article 9 of 
the International Covenant on Civil and Political Rights 
(ICCPR), which the United States has ratified, see 138 
Cong. Rec. S4781-84 (Apr. 2, 1992), provides that “[n]o 
one shall be subjected to arbitrary arrest and deten- 
tion.” See International Covenant on Civil and Poli- 
tical Rights, opened for signature, Dec. 19, 1966, 999 
U.N.T.S. 171, 21 U.N. GAOR Supp. (No. 16) at 54, 
entered into force Mar. 23, 1976, at Art. 9(1); see also 
Trans World Airlines, Inc. v. Franklin Mint Corp., 466 
U.S. 243, 252, 104 S. Ct. 1776, 80 L.Ed.2d 273 (1984) 
(holding that ambiguous Congressional action should 
not be construed to abrogate a treaty). 

In the present case, construing the statute to 
authorize the indefinite detention of removable aliens 
might violate international law. In Martinez, 141 F.3d 

28 This court has held that within the domestic legal structure, 
international law is displaced by “a properly enacted statute, pro- 
vided it be constitutional, even if that statute violates international 
law.” Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991) 
(involving prolonged detention of excludable aliens); see also 
Barrera-Echavarria v. Rison, 44 F.3d 1441, 1451 (9th Cir. 1995). 
Those rulings, however, do not suggest that courts should refrain 
from applying the Charming Betsy principle. Rather, they stand 
for the proposition that when Congress has clearly abrogated 
international law through legislation, that legislation nonetheless 
has the full force of law. See Restatement (Third) of International 
Law § 115(1)(a) (“An Act of Congress supercedes an earlier rule of 
international law or a provision of an international agreement as 
law of the United States if the purpose of the act to supercede the 
earlier rule or provision is clear and if the act and the earlier rule 
or provision cannot be fairly reconciled”). Although Congress may 
override international law in enacting a statute, we do not presume 
that Congress had such an intent when the statute can reasonably 
be reconciled with the law of nations. 

31a 

1373, we expressed our approval of a district court 
decision in this circuit holding that “individuals impris- 
oned for years without being charged were arbitrarily 
detained” in violation of international law, id. at 1384 
(citing Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 
(N.D. Cal. 1987)). Given the strength of the rule of 
international law, our construction of the statute ren- 
ders it consistent with the Charming Betsy rule. 

CONCLUSION 

In the face of these compelling statutory arguments, 
we do not read § 1231(a)(6) as authorizing the indefinite 
detention of removable aliens. Rather, we hold that the 
statute authorizes the Attorney General to detain re- 
movable aliens only for a reasonable time beyond the 
ninety day removal period. While we could reach this 
construction of the statute simply by invoking the 
doctrine of constitutional avoidance, it is not necessary 
to rest our decision on that legal principle. As the 
above discussion makes clear, ordinary tenets of statu- 
tory construction lead us to that same result. What 
constitutes a reasonable time will depend on the cir- 
cumstances of the various cases. Here, we need not 
address all the conceivable situations that could arise to 
delay or preclude removal. We need hold only that 
where it is reasonably likely that an alien who has 
entered the United States cannot be removed in the 
reasonably foreseeable future, detention beyond the 
removal period is not justified. 

29 

29 We recognize that our reference to aliens who have already 
entered is, in one sense, too broad. Aliens who entered the United 
States in the past but have since left for a significant time have no 
more constitutional rights than first-time would-be entrants. See 

32a 

In Ma’s case, the district court did not err in con- 
cluding that there is not a reasonable likelihood that the 
INS will be able to remove Ma to Cambodia. Although 
the INS offered evidence that the State Department 
has submitted a proposal for a repatriation agreement 
to the Cambodian government, both sides agree that 
the United States has no functioning repatriation 
agreement with that country, that the Cambodian 
government does not presently accept the return of its 
nationals from the United States, and that it has not 
announced a willingness to enter into an agreement to 
do so in the foreseeable future, (or indeed at any time). 
In the absence of a repatriation agreement, extant or 
pending, we must affirm the district court’s finding that 
there is no reasonable likelihood that the INS will be 
able to accomplish Ma’s removal. 

30 Under these 
circumstances, the INS may not detain Ma any longer. 

We stress that our decision does not leave the 
government without remedies with respect to aliens 
who may not be detained permanently while awaiting a 
removal that may never take place. All aliens ordered 
released must comply with the stringent supervision 
requirements set out in 8 U.S.C. § 1231(a)(3). Ma will 
have to appear before an immigration officer periodi- 

Landon, 459 U.S. at 30, 103 S. Ct. 321; Mezei, 345 U.S. at 213, 73 
S. Ct. 625. They are considered “excludable.” 

30 We note that our construction of the statute does not require 
us to “second-guess” or otherwise interfere with the foreign policy 
actions of the United States government. On the contrary, we 
have taken at face value the evidence submitted by a State De- 
partment officer regarding the status of the government’s at- 
tempts to establish a repatriation agreement with Cambodia. He 
has candidly stated that he cannot predict when a repatriation 
agreement will be established and begin to function. 

33a 

cally, answer certain questions, submit to medical or 
psychiatric testing as necessary, and accept reasonable 
restrictions on his conduct and activities, including 
severe travel limitations. More important, if Ma 
engages in any criminal activity during this time, in- 
cluding violation of his supervisory release conditions, 
he can be detained and incarcerated as part of the 
normal criminal process. 

31 

For the foregoing reasons, the district court’s 
decision is 

AFFIRMED. 

31 We note that the regulations governing Ma’s release state 
that he can be detained for violating them, and moreover that 
violations of supervisory release conditions are punishable by fine 
and/or imprisonment under 8 U.S.C. § 1253(b). 

34a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
SEATTLE DIVISION 

Nos. C98-234Z, C99-177C, C99-185R, C99-341WD and 
C99-151L 

BINH PHAN, SON THAI HUYNH, DENNIS 
VLADIMIROVICH BATYUCHENKO, 
KHAMSAENE SIVONGXAY, KIM HO MA, PETITIONERS 

v. 

JANET RENO; UNITED STATES IMMIGRATION AND 

NATURALIZATION SERVICE; AND RICHARD C. SMITH, 
RESPONDENTS 

July 9, 1999 

JOINT ORDER 

Before: JOHN C. COUGHENOUR, Chief Judge, and 
BARBARA JACOBS ROTHSTEIN, WILLIAM L. DWYER, 
THOMAS S. ZILLY, and ROBERT S. LASNIK, District 
Judges. 

COUGHENOUR, Chief Judge. 

35a 

INTRODUCTION 

More than one hundred habeas corpus petitions are 
currently pending in the Western District of Wash- 
ington wherein aliens ordered deported to countries 
that have refused them admittance challenge the 
legality of their continued detention by the Immi- 
gration and Naturalization Service (INS). In an order 
dated April 22, 1999, the undersigned judges of the 
Western District designated five lead cases1 that pre- 
sent issues common to all petitioners and directed the 
parties to brief and argue these common issues to- 
gether; the remaining cases were stayed pending de- 
cisions in the lead cases.2 The issues common to all 
petitioners have been thoroughly briefed by the par- 
ties, as well as by the American Civil Liberties Union 
and Northwest Immigrants Rights Project as amici 
curiae. Sitting en banc, we heard oral argument on the 
common issues on June 17, 1999. 

Due to the great number of cases currently pending 
in this district that raise the same issue, namely 
whether INS detention of aliens ordered deported to 
countries that have refused them admittance violates 
substantive or procedural due process, we recognize the 
need to adopt a consistent legal framework to guide our 

1 The five lead cases are Phan v. Smith, 56 F. Supp.2d 1158 
(W.D. Wash. 1999); Huynh v. INS, 56 F. Supp.2d 1160 (W.D. Wash. 
1999); Batyuchenko v. INS, C99-185R, —— F. Supp.2d —— (W.D. 
Wash. 1999); Sivongxay v. INS, 56 F. Supp.2d 1167 (W.D. Wash. 
1999); and Ma v. INS, 10 56 F. Supp.2d 1165 (W.D. Wash. 1999). 

2 All cases filed after April 22nd that raise the same issues 
were similarly stayed pursuant to a supplemental order dated June 
29, 1999. 

36a 

individual consideration of these petitions. To that end, 
after carefully considering the written and oral argu- 
ments offered by all parties and amici, we have reached 
agreement on the analysis set out in this joint order. In 
the individual orders that follow, we evaluate the 
merits of each lead case in light of the framework estab- 
lished in this joint order. 

I. GENERAL BACKGROUND 

The five lead petitioners and the aliens whom they 
represent are lawful permanent residents of the United 
States who have been ordered deported to their native 
countries because they committed crimes designated by 
Congress as deportable offenses. The petitioners have 
been detained at various state and federal facilities by 
the INS since their orders of deportation became final. 
The INS has been unable to deport the petitioners, 
despite the final orders of deportation, because their 
countries of origin refuse to receive them. They never- 
theless continue to be detained. As of the date of this 
order, the five lead petitioners have been detained 
between eight months and three years. All petitioners 
challenge the constitutionality of their continued de- 
tention on substantive and procedural due process 
grounds. 

In this order, we consider our jurisdiction to enter- 
tain the pending habeas petitions and the government’s 
exhaustion argument. Concluding that jurisdiction 
exists and that no exhaustion requirement bars reach- 
ing the merits, we turn to petitioners’ constitutional 
claims, addressing the substantive due process claim 
first and then evaluating the constitutionality of the 
current INS detention procedures. 

37a 

II. STATUTORY AND REGULATORY FRAMEWORK 

Prior to 1996, after a final order of deportation had 
been entered, aliens generally could not be detained 
pending deportation for more than six months. Former 
INA § 242(c), 8 U.S.C. § 1252(c) (1994). Upon expira- 
tion of the six-month period, such aliens had to be 
released, but they remained subject to the supervision 
of the Attorney General. Former INA § 242(d), 8 
U.S.C. § 1252(d) (1994). 

In 1996, Congress enacted the Antiterrorism and 
Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 
104-132, 110 Stat. 1214 (enacted on April 24, 1996), and 
the Illegal Immigration Reform and Immigrant Re- 
sponsibility Act of 1996 (IIRIRA), Pub.L. 104-208, 110 
Stat. 3009-546 (enacted on September 30, 1996), both of 
which substantially revised the detention provisions of 
the INA. AEDPA § 440(c) amended § 1252(a)(2) to 
require the Attorney General to take into custody 
aliens convicted of aggravated felonies, controlled sub- 
stance offenses, firearms offenses, and other serious 
crimes upon the release of such aliens from incar- 
ceration. 110 Stat. 1277, amended by, IIRIRA § 306(d), 
110 Stat. 3009-612. AEDPA § 440(c) required the 
Attorney General to detain such aliens pending their 
removal from the United States. 

Five months later, IIRIRA restored some release 
discretion to the Attorney General. The current pro- 
cedural framework provides for mandatory detention of 
criminal aliens during removal proceedings, INA 
§ 236(c), 8 U.S.C. § 1226(c) (1999), and for 90 days there- 
after, during which time removal should generally 

38a 

occur, INA § 241(a)(2), 8 U.S.C. § 1231(a)(2) (1999).3 If 
removal cannot be accomplished during this period, the 
Attorney General retains discretion to continue to 
detain criminal aliens she determines “to be a risk to 
the community or unlikely to comply with the order of 
removal.” INA § 241(a)(2) [sic], 8 U.S.C. § 1231(a)(6) 
(1999). 

The implementing regulations delegate the Attorney 
General’s discretionary release power to the INS 
District Director. 8 C.F.R. § 241.4; 8 C.F.R. § 236.1(d) 
(2)(ii). Under the regulations, to obtain release the 
alien must demonstrate “by clear and convincing evi- 
dence that the release would not pose a danger to the 
community or a significant flight risk.” Id. In such 
circumstances, the District Director may in the exercise 
of his discretion either release the alien, or continue to 
maintain the alien in custody. Id. The regulation 
also lists nine non-exclusive factors that the District 
Director may consider in making such determinations.4 
The alien may appeal an adverse decision to the Board 
of Immigration Appeals. 8 C.F.R. § 236.1(d)(3)(ii). 

3 These mandatory detention provisions apply to aliens who are 
deportable because they were convicted of a crime involving moral 
turpitude, an aggravated felony, certain firearms offenses, and 
other miscellaneous crimes. INA § 241(a)(2); 8 U.S.C. § 1231(a)(2) 
(1999). 

4 These factors are “(1) The nature and seriousness of the 
alien’s criminal convictions; (2) Other criminal history; (3) Sen- 
tence(s) imposed and time actually served; (4) History of failures to 
appear for court (defaults); (5) Probation history; (6) Disciplinary 
problems while incarcerated; (7) Evidence of rehabilitative effort 
or recidivism; (8) Equities in the United States; and (9) Prior 
immigration violations and history.” 8 C.F.R. § 241.4(a)(1)-(9). 

39a 

The INS has recently implemented further policies 
related to “detention procedures for aliens whose 
immediate repatriation is not possible or practicable.” 
See Pearson Memo, INS Ex. A (emphasis omitted). The 
guidelines found in the Pearson Memo provide for auto- 
matic review of post-final order detention cases before 
and after the expiration of the 90-day removal period. 
Additionally, the guidelines provide for mandatory re- 
view every six months thereafter to enable the District 
Director to “determine whether there has been a 
change in circumstances that would support a release 
decision.” Id. The director can delegate the file review 
process-but not the decision-making function-to assis- 
tants. Id. Aliens have no right to appeal a release 
denial made pursuant to the Pearson Memo. Id. 

III. JURISDICTION 

As all parties concede, the general habeas corpus 
statute, 28 U.S.C. § 2241, provides the Court the 
authority to grant a writ of habeas corpus to a person 
held “in custody in violation of the Constitution or laws 
or treaties of the United States,” 28 U.S.C. § 2241(c)(3), 
and has historically afforded the jurisdictional basis for 
courts to review the constitutionality of executive de- 
tention. Petitioners’ claims here fall squarely within 
§ 2241. Therefore, this Court has jurisdiction to con- 
sider the constitutionality of their detention. See 
Mayers v. INS, 175 F.3d 1289, 1999 WL 317121 (11th 
Cir. May 20, 1999); Sandoval v. Reno, 166 F.3d 225 (3d 
Cir. 1999); Henderson v. INS, 157 F.3d 106, 118-22 (2d 
Cir. 1998), cert. denied, 119 S. Ct. 1141, 119 S. Ct. 1141, 
143 L.Ed.2d 209 (1999); Goncalves v. Reno, 144 F.3d 110 
(1st Cir. 1998), cert. denied, —— U.S. ——, 119 S. Ct. 
1140, 143 L.Ed.2d 208 (1999). 

40a 

IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES 

As a threshold matter, the government argues that 
the Court should decline to exercise its jurisdiction 
because petitioners have failed to exhaust their admini- 
strative remedies. More specifically, the government 
urges us to require petitioners to appeal the denial of 
their formal release requests before reaching the 
merits of their constitutional claims, suggesting that if 
petitioners’ detention claims can be resolved through 
the administrative process, they should be. 

While the INA contains no statutory provision re- 
quiring exhaustion, the Court may apply the doctrine 
if “sound judicial discretion” so advises. McCarthy v. 
Madigan, 503 U.S. 140, 144, 112 S. Ct. 1081, 117 
L.Ed.2d 291 (1992). It is true that the general policies 
underlying the exhaustion doctrine-to avoid premature 
interruption of the administrative process and to 
allow executive agencies to exercise their discretionary 
authority-would counsel in favor of an exhaustion re- 
quirement were the Court being asked to review dis- 
cretionary determinations by the INS or other admini- 
strative findings of fact. See, e.g., Lleo-Fernandez v. 
INS, 989 F.Supp. 518, 519 (S.D.N.Y. 1998). But this is 
not what petitioners ask us to do. Rather, they ask us 
to decide whether their continued detention is lawful 
under applicable statutes and the Fifth Amendment. 
No administrative proceeding exists to consider these 
issues. Under the circumstances, no exhaustion re- 
quirement should be imposed. McCarthy, 503 U.S. at 
144, 112 S. Ct. 1081; see also Tam v. INS, 14 F.Supp.2d 
1184, 1189 (E.D. Cal. 1998). 

41a 

Concluding that we have jurisdiction and petitioners 
need not exhaust administrative remedies, we now turn 
to petitioners’ constitutional claims. 

V. DUE PROCESS CLAIMS 

The Due Process Clause of the Fifth Amendment to 
the United States Constitution protects the most basic 
and fundamental of human rights, ensuring that no 
person will be deprived of life, liberty or property 
without due process of the law. U.S. Const. Amend. V. 
Its protection extends to all “persons” within the 
borders of the United States, including deportable 
aliens. Landon v. Plasencia, 459 U.S. 21, 32-33, 103 
S.Ct. 321, 74 L.Ed.2d 21 (1982). There is, however, one 
narrow exception to this rule. Based on what has 
become known as the “entry fiction,” 5 a number of 
cases have held that aliens who are placed in exclusion 
proceedings before entering the United States are 
legally considered to be detained at the border and are 
thus not entitled to due process protection. Id.; 
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 
206, 73 S. Ct. 625, 97 L.Ed. 956 (1953); Barrera- 
Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) 
(en banc). As a result, the Due Process Clause affords 
an excludable alien no procedural protection beyond the 
procedure explicitly authorized by Congress, see Mezei, 
345 U.S. at 212, 73 S. Ct. 625, nor any “substantive right 

5 “Mezei established what is known as the ‘entry fiction’ which 
provides that although aliens seeking admission into the United 
States may physically be allowed within its border pending a 
determination of admissibility, such aliens are legally considered to 
be detained at the border and hence as never having effected entry 
into the country.” Barrera-Echavarria v. Rison, 44 F.3d 1441, 
1450 (9th Cir. 1995) (en banc) (citations omitted). 

42a 

to be free from immigration detention.” Barrera, 44 
F.3d at 1450. 

The entry fiction doctrine is inapplicable here. Peti- 
tioners are deportable-not excludable-aliens, and this 
distinction is critical. An excludable alien seeking 
admission “requests a privilege and has no consti- 
tutional rights regarding his application.” Plasencia, 
459 U.S. at 32, 103 S. Ct. 321. But “[o]nce an alien gains 
admission to our country and begins to develop the ties 
that go with permanent residence, his constitutional 
status changes accordingly.” Id. Petitioners fall into 
the latter category. No authority supports the govern- 
ment’s position that aliens somehow “assimilate” to 
excludable status once they have been ordered de- 
ported, thereby relinquishing their constitutional 
rights.6 Petitioners are all long-time permanent legal 
residents of the United States and, as such, are “per- 
sons” entitled to the protection of the Fifth Amend- 
ment, despite having been ordered deported. 

6 The Supreme Court has held that a lawful permanent resident 
who leaves the United States then later seeks reentry may, upon 
his reentry, “assimilate” to the status of a continuously residing 
lawful permanent resident for purposes of his constitutional right 
to due process. See Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S. 
Ct. 472, 97 L.Ed. 576 (1953) (permanent resident alien returning 
from five-month voyage abroad on Merchant Marine ship not 
subject to regulations permitting exclusion of arriving aliens 
without a hearing). The assimilation doctrine thus has been used to 
provide extra protection for resident aliens who have left the 
United States and who later seek reentry. No court in a published 
opinion, however, has ever used the assimilation doctrine to reduce 
the constitutional protection afforded lawful resident aliens who 
have never physically left the United States. 

43a 

Turning to the merits, petitioners challenge their 
detention on both substantive and procedural due 
process grounds. We address first petitioners’ sub- 
stantive due process claim: only if a restriction on 
liberty survives substantive due process scrutiny is it 
necessary to consider whether the restriction is imple- 
mented in a procedurally fair manner. See United 
States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 
L.Ed.2d 697 (1987). 

A. SUBSTANTIVE DUE PROCESS 

Above and beyond the procedural guarantee explicit 
in the Due Process Clause itself, federal courts have 
long recognized a limited “substantive” component that 
“forbids the government to infringe certain ‘funda- 
mental’ liberty interests at all, no matter what process 
is provided, unless the infringement is narrowly 
tailored to serve a compelling state interest.” Reno v. 
Flores, 507 U.S. 292, 301-02, 113 S. Ct. 1439, 123 
L.Ed.2d 1 (1993). The Supreme Court has counseled 
restraint in recognizing a particular interest as de- 
serving of substantive due process protection, see 
Collins v. Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 
1061, 117 L.Ed.2d 261 (1992), and the analysis should 
begin “with a careful description of the asserted right.” 
Flores, 507 U.S. at 302, 113 S. Ct. 1439. 

The government argues that the interest at issue is 
petitioners’ “right to be released into the United States 
pending [their] removal.” But this definition construes 
petitioners’ right too narrowly. The issue here is much 
more basic—it is simply the right to be at liberty. Put 
another way, at issue is petitioners’ fundamental liberty 
interest in being free from incarceration. “Freedom 

44a 

from bodily restraint has always been at the core of the 
liberty protected by the Due Process Clause.” Foucha 

v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 
L.Ed.2d 437 (1992). Petitioners’ liberty interest is 
fundamental and deserving of due process protection. 

As a general rule, government invasions of funda- 
mental liberty interests are subject to strict scrutiny 
review: a deprivation will comport with due process 
only if it is narrowly tailored to serve a compelling 
government interest. Flores, 507 U.S. at 301-02, 113 S. 
Ct. 1439. Applying this standard of review in detention 
cases, courts consider whether the detention is “im- 
posed for the purpose of punishment or whether it is 
merely incidental to another legitimate governmental 
interest.” Tam v. INS, 14 F.Supp.2d at 1191(quoting 
Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1441 
(5th Cir. 1993)); Bell v. Wolfish, 441 U.S. 520, 536-40, 99 
S. Ct. 1861, 60 L.Ed.2d 447 (1979).7 This requires the 
Court to consider the constitutionality of the detention 
in light of its purpose, and to ask whether the detention 
is based upon “permissible” regulatory goals of the 
government and, if it is, whether the detention is 
excessive in relation to those goals. Martinez v. Greene, 
28 F. Supp.2d 1275, 1282 (D. Colo. 1998) (citing Salerno, 
481 U.S. at 747, 107 S. Ct. 2095); Tam, 14 F.Supp.2d at 
1191 (quoting Gisbert, 988 F.2d at 1441); Zadvydas v. 
Caplinger, 986 F. Supp. 1011, 1025-26 (E.D. La. 1997). 

Even so, argues the government, when reviewing 
immigration matters, the Court’s power to inquire into 

7 The Ninth Circuit has held that immigration detention is not 
punishment. Alvarez-Mendez v. Stock, 941 F.2d 956, 962 (9th Cir. 
1991). 

45a 

alleged violations of petitioners’ substantive due pro- 
cess rights is limited, and the Court should therefore 
apply a more deferential standard of review. The INS 
correctly states that the legislative and executive 
branches possess “plenary power” over immigration 
and naturalization, Flores, 507 U.S. at 305-06, 113 S. Ct. 
1439, and that judicial deference to the political 
branches on these matters allows for greater flexibility 
to adjust policy choices to changing political and 
economic circumstances. Mathews v. Diaz, 426 U.S. 67, 
81, 96 S. Ct. 1883, 48 L.Ed.2d 478 (1976). Moreover, 
judicial deference allows the political branches to 
“ ‘exercise especially sensitive political functions that 
implicate questions of foreign relations,’ ” INS v. 
Aguirre-Aguirre, —— U.S. ——, ——, 119 S. Ct. 1439, 
1445, 143 L.Ed.2d 590 (1999) (quoting INS v. Abudu, 
485 U.S. 94, 110, 108 S. Ct. 904, 99 L.Ed.2d 90 (1988)), 
and recognizes that “[i]n the exercise of its broad power 
over nationalization and immigration, Congress regu- 
larly makes rules that would be unacceptable if applied 
to citizens.” Mathews, 426 U.S. at 79-80, 96 S. Ct. 1883. 

While the plenary power doctrine supports judicial 
deference to the legislative and executive branches on 
substantive immigration matters, such deference does 
not extend to post-deportation order detention. Inde- 
finite detention of aliens ordered deported is not a 
matter of immigration policy; it is only a means by 
which the government implements Congress’s direc- 
tives. The dangers at which the detention scheme is 
directed, chiefly the prevention of flight and the pro- 
tection of the community pending deportation of aliens 
who have been convicted of crimes, involve domestic 
interests rather than international concerns. Whether 
petitioners are detained or released on bond until the 

46a 

government can facilitate their deportation does not 
raise foreign relations questions. Accordingly, the 
plenary power doctrine has far less force here than it 
does, for example, over decisions concerning who 
should or should not be admitted, or who should or 
should not be deported. Finally, detention threatens 
the deprivation of a fundamental liberty interest and 
thus clearly triggers “heightened, substantive due 
process scrutiny,” not judicial deference. Flores, 507 
U.S. at 316, 113 S. Ct. 1439 (O’[C]onnor, J., concurring). 
For these reasons, the Court finds that the plenary 
power doctrine does not support a deferential standard 
of review of petitioners’ detention. Heightened scru- 
tiny applies. 

The government advances three regulatory interests, 
all of which satisfy the “permissible” standard: (1) 
ensuring the removal of aliens ordered deported; (2) 
preventing flight prior to deportation; and (3) pro- 
tecting the public from dangerous felons. See 8 U.S.C. 
§ 1231(a)(6). Clearly the government has a legitimate 
interest in securing the safe removal of aliens. Indeed, 
this is a primary objective of the INS: to decide which 
aliens may remain in the United States and which must 
leave, and to facilitate the safe and expeditious removal 
of aliens ordered deported. The latter two goals are 
incidental to this primary objective. Citing recent 
widespread recidivism and abscondence among criminal 
aliens, the INS contends it must retain the discretion to 
detain individuals such as the petitioners so that it can 
facilitate their safe removal. These also are “permis- 
sible” goals, but ones that derive solely from the power 
to deport. 

47a 

The critical inquiry, therefore, is whether an alien’s 
detention is excessive in relation to these government 
interests. In making this determination, we must 
necessarily balance the likelihood that the government 
will be able to effectuate deportation, against the 
dangerousness of a petitioner and the likelihood that he 
will abscond if released. In so doing, it becomes clear 
that as the probability that the government can 
actually deport an alien decreases, the government’s 
interest in detaining that alien becomes less compelling 
and the invasion into the alien’s liberty more severe. 
Dangerousness and flight risk are thus permissible 
considerations and may, in certain situations, warrant 
continued detention, but only if there is a realistic 
chance that an alien will be deported. Detention by the 
INS can be lawful only in aid of deportation. Thus, it is 
“excessive” to detain an alien indefinitely if deportation 
will never occur. 

The foregoing provides the appropriate legal frame- 
work under which petitioners’ substantive due process 
claims must be individually evaluated. For the lead 
petitioners, we perform this evaluation in their respec- 
tive cases in the orders following this joint order. The 
remaining petitions shall be evaluated pursuant to the 
procedure set forth in the Conclusion, infra. 

B. PROCEDURAL DUE PROCESS 

The substantive due process analysis necessarily 
turns on the individual facts and circumstances pre- 
sented by each petitioner. If, upon evaluating a peti- 
tioner’s detention in light of the above substantive due 
process framework, it is concluded that there exists no 
constitutional deprivation, the Court would normally 

48a 

then consider whether the procedures pursuant to 
which the petitioner is being detained pass consti- 
tutional muster. See Salerno, 481 U.S. at 746, 107 S. Ct. 
2095. Unlike substantive due process, however, the 
procedures governing petitioners’ detention are uni- 
form; that is, the same procedural scheme applies to all. 
For this reason, we shall consider petitioners’ pro- 
cedural due process claims collectively in this joint 
order. 

This analysis begins with the Due Process Clause of 
the Fifth Amendment, which entitles petitioners to 
procedural due process of law in their deportation 
proceedings. “The constitutional sufficiency of the 
procedures provided in any situation, of course, varies 
with the circumstances.” Plasencia, 459 U.S. at 34, 103 
S. Ct. 321 (citing Lassiter v. Department of Soc. Serv., 
452 U.S. 18, 24-25, 101 S. Ct. 2153, 68 L.Ed.2d 640 
(1981)). To determine what process is constitutionally 
mandated, the Court must review the existing pro- 
cedural framework, then consider “the interest at stake 
for the individual, the risk of an erroneous deprivation 
of the interest through the procedures used as well as 
the probable value of additional or different procedural 
safeguards, and the interest of the government in using 
the current procedures.” Plasencia, 459 U.S. at 34, 103 
S. Ct. 321 (citing Mathews v. Eldridge, 424 U.S. 319, 
334-35, 96 S. Ct. 893, 47 L.Ed.2d 18 (1976)).8 

8 In its supplemental response, the government contends that 
the Mathews test is inapplicable, and that petitioners’ procedural 
due process claims should be judged instead under the Flores 
“(unexacting) standard of rationally advancing some legitimate 
governmental purpose.” See INS Br. at 22. Plasencia governs, 
and dictates the applicability of the Mathews test. Plasencia, 459 
U.S. at 34, 103 S. Ct. 321. The Flores Court found petitioners’ 

49a 

As stated above, the interest at stake is petitioners’ 
freedom; as a fundamental right, this interest is clearly 
substantial. The government’s interest in effectuating 
the safe removal of aliens ordered deported is also 
substantial, but as discussed above, this interest 
becomes less compelling as the probability of deporta- 
tion decreases. The outcome thus hinges on the second 
part of the Mathews test: the risk of erroneous depri- 
vation and the value of additional procedures. 

The government defends the existing procedural 
framework as complying with due process. It points 
out that release decisions are based upon either the 
District Director’s review of the alien’s written sub- 
missions and administrative file or an interview with 
the alien and that the Director considers each of the 
nine factors set forth at 8 C.F.R. § 241.4 in making 
those decisions. This, the government submits, is more 
than sufficient process to ensure that only a minimal 
risk of erroneous deprivation of petitioners’ liberty 
interest exists. 

In response, petitioners and amici curiae assert that 
the procedural scheme as it now exists is structurally 
biased against meaningful review of petitioners’ indi- 
vidual circumstances and therefore violates their 
procedural due process rights. “Due to political and 
community pressure, the INS, an executive agency, has 
every incentive to continue to detain aliens with 
aggravated felony convictions, even though they have 

procedural due process claims to be a restatement of the sub- 
stantive due process claims, and rejected them on that basis 
without setting forth a new standard of review. Flores, 507 U.S. at 
306-07, 113 S. Ct. 1439. 

50a 

served their sentences, on the suspicion that they may 
continue to pose a danger to the community.” St. John 

v. McElroy, 917 F. Supp. 243, 251 (S.D.N.Y. 1996). This 
bias, petitioners urge, precludes an impartial review of 
their release requests, thereby denying them pro- 
cedural due process. 

Other courts faced with similar situations have ex- 
pressed “little confidence” in release determinations by 
District Directors. Cruz-Taveras v. McElroy, 1996 WL 
455012 (S.D.N.Y. Aug. 13, 1996); Thomas v. McElroy, 
1996 WL 487953 (S.D.N.Y. Aug. 27, 1996); Alba v. 
McElroy, 1996 WL 695811 (S.D.N.Y. Dec. 4, 1996).9 
These courts found that instead of individually assess- 
ing dangerousness and flight risk, Directors simply 
relied on the aliens’ past criminal history and the fact 
that they were facing removal from the United States, 
summarily concluding that the aliens posed such risks 
and denying them release. This does not meet the 
requirements of procedural due process. 

We have similar concerns about the quality of the 
review afforded by the INS to the petitioners. Indeed, 
our review of the record confirms that the INS does not 
meaningfully and impartially review the petitioners’ 
custody status. The absence of any individualized 
assessment or consideration of the petitioners’ situa- 

9 These cases concern parole hearings for lawful permanent 
residents who left the United States temporarily and upon their 
return were placed in exclusion hearings. The statutory scheme at 
issue there required mandatory detention of aliens convicted of 
aggravated felonies during the pendency of their exclusion pro- 
ceedings. Because petitioners are entitled to discretionary release 
by INS officials, however, the structural bias arguments raised in 
those cases are equally applicable here. 

51a 

tions in light of the pertinent factors set forth in the 
regulations violates their procedural due process rights. 
At a minimum, each petitioner is entitled to a fair and 
impartial hearing before an immigration judge at which 
he or she can present evidence to support release 
pending deportation. The immigration judge must 
actually consider the factors set forth at 8 C.F.R. § 
241.4 and explain how they apply to each petitioner’s 
unique circumstances. Petitioners also must be able to 
appeal any adverse denial of a release request to the 
BIA. The risk of erroneous deprivation of a petitioner’s 
liberty interest is too great to deny him or her anything 
less than the full procedural protections available under 
the Constitution. 

CONCLUSION 

In the orders that follow, we individually apply the 
due process framework in the lead cases to determine 
whether continued detention violates the petitioner’s 
right to substantive due process. The Court shall pro- 
vide for expedited review of the remaining petitions 
that have been stayed pursuant to the April 22nd and 
June 29th orders. To that end, the government is 
directed to file a status report and recommendation in 
each of the stayed cases within twenty (20) days of 
entry of this order. These reports shall evaluate each 
petitioner’s situation in light of the above framework. 
Counsel for each petitioner may file a response in the 
respective case within ten (10) days thereafter. Each 
judge shall then consider the petitions pending before 
him or her according to the above framework and in 
light of the arguments provided by the parties in the 
status report and the response thereto. 

52a 

APPENDIX C 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
SEATTLE DIVISION 

No. C99-151L 

KIM HO MA, PLAINTIFF 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 
DEFENDANT 

July 13, 1999 

ORDER SETTING HEARING 

LASNIK, District Judge. 

Kim Ho Ma’s petition for a writ of habeas corpus and 
four others were designated “lead” cases in this district 
for the purpose of joint consideration of the govern- 
ment’s indefinite detention of certain deportable aliens.1 
This order incorporates the Court’s Joint Order and 
applies the analysis in that order to Mr. Ma’s case.2 

1 See Order on Lead Cases, and Stay of Related Cases, entered 
4/22/99. 

2 See Joint Order, entered 7/9/99. 

53a 

Ma entered the United States as a Cambodian 
refugee in 1985 at age 7, and became a lawful perma- 
nent resident in 1987. In 1996 he was convicted of first 
degree manslaughter, for which he served two years 
incarceration. He was then released to the Immi- 
gration and Naturalization Service, which began depor- 
tation proceedings. In September 1997 the INS 
ordered Ma removed as an aggravated felon. An Immi- 
gration Judge denied his requests for release on bond in 
October and December 1997. In both instances the 
Immigration Judge found that Ma was not a flight risk, 
but was a danger to the community. (AR 93, 41). Ma’s 
appeal to the BIA was denied in October 1998. (AR 4). 
He has been in INS custody since June 1997, and sub- 
ject to a final order of deportation since October 1998. 
The United States appears not to have requested travel 
documents for Ma from the Cambodian government. 

As discussed in the Joint Order, deportable aliens 
like Ma are entitled to substantive due process under 
the Fifth Amendment. The government’s continued 
detention of Ma violates his right to substantive due 
process if it is excessive in relation to the government’s 
interests in effectuating his deportation. See United 
States v. Salerno, 481 U.S. 739, 747, 107 S. Ct. 2095, 95 
L.Ed.2d 697 (1987); Martinez v. Greene, 28 F.Supp.2d 
1275, 1282 (D. Colo. 1998); see also Joint Order at 9. 
This inquiry requires the Court to weigh Ma’s interest 
in liberty against the government’s interests in effec- 
tuating his removal, preventing his escape, and pro- 
tecting the public. While it is clear that Ma’s interest in 
liberty is strong, the government’s interests depend 
upon the likelihood that it can ever complete Ma’s de- 
portation. See Joint Order at 9. 

54a 

The record is not clear whether the government is 
likely to accomplish Ma’s deportation. Although there 
is no evidence that the government has even requested 
the assistance of the Cambodian government, Ma’s final 
order of deportation is only eight months old. There is 
little or no indication in the record whether Cambodia is 
likely to accept Ma, were it asked to do so. And the 
government raises but does not explain Mr. Ma’s 
“pending Torture Convention claim.” I.N.S. Brief at 10. 
These issues are critical to determining the weight of 
the government’s interests in Ma’s continued detention. 

Accordingly, the Court will schedule a hearing in this 
matter. The parties are directed to contact this Court’s 
deputy clerk to schedule such a hearing. 

The Clerk of the Court is directed to send copies of 
this order to all counsel of record. 

55a 

APPENDIX D 

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
SEATTLE DIVISION 

No. C99-151L 

KIM HO MA, PLAINTIFF 

v. 

JANET RENO, ATTORNEY GENERAL, UNITED STATES 
IMMIGRATION AND NATURALIZATION SERVICE, AND 

RICHARD COHEN, DISTRICT DIRECTOR, SEATTLE 
DISTRICT, DEFENDANTS 

[Filed: Sept. 29, 1999] 

ORDER GRANTING WRIT OF HABEAS CORPUS 

This matter comes before the Court on Kim Ho Ma’s 
petition for a writ of habeas corpus ordering his release 
from detention by the Immigration and Naturalization 
Service (INS). Having considered the materials filed 
by petitioner, the government, and amici curiae, and 
the parties’ oral arguments and supplementary 
briefing, the Court hereby grants the petition and 
orders petitioner released from custody. 

56a 

INTRODUCTION 

Petitioners’ case was designated by this Court as one 
of five “lead” cases because it raises issues common to 
many similar petitions pending in this district. Peti- 
tioner has been ordered deported to a country that will 
not accept him, and claims his continued detention by 
the INS is indefinite, and therefore unconstitutional. 
The Court convened oral argument on the lead cases, 
and on July 9, 1999 issued a joint order signed by the 
five active judges in this district. That joint order de- 
termined threshold issues and set out a framework for 
analyzing petitioners’ claims that their continued deten- 
tion violates their due process rights. This order ap- 
plies that framework to petitioner Ma’s case.1 

BACKGROUND 

Petitioner was born in Cambodia in 1977, and entered 
the United States as a refugee in 1985. He became a 
lawful permanent resident in 1987. At age 17, he was 
involved, with three other members of a gang known as 
the Local Asian Boyz, in the killing of another gang 
member. In 1996, he was tried as an adult on a charge 
of murder in the first degree. The jury acquitted him of 
first degree murder, hung on the charge of second 
degree murder, and convicted Ma of first degree man- 
slaughter. He completed his sentence and was then 
transferred to INS custody. In September 1997, the 
INS ordered him to be removed from the United States 
as an aggravated felon. See 8 U.S.C.A. §§1227(a)(2) 

1 This Court will adhere to the joint order, despite the govern- 
ment’s suggestions to the contrary. 

57a 

(A)(iii), 1101(a)(43) (1999). Petitioner’s appeal to the 
Bureau of Immigration Appeals (BIA) was denied, and 
his order of deportation became final October 26, 1998. 
See Administrative Record at 4, 5. 

An immigration judge denied petitioner’s request for 
release on bond in October and December 1997. In both 
instances the Immigration Judge found that petitioner 
was not a flight risk, but was a danger to the com- 
munity strictly because of the seriousness of his crime. 
AR 40, 93. In May 1999, the INS conducted a “90 Day 
Custody Review” in Ma’s case. An INS deportation of- 
ficer interviewed petitioner and reviewed letters and 
other materials submitted by his family and friends. An 
assistant director then apparently reviewed the depor- 
tation officer’s report and issued a decision in June 
denying release.2 Under new custody review proce- 
dures, this decision may be reviewed at INS Head- 
quarters, but to date it has not been so reviewed. See 
Respondents’ Exhibit CC (filed under “Praecipe” 
9/9/99). 

Following entry of the Court’s joint order in this 
case, this Court set a hearing to take additional evi- 

2 The decision was expressed in a form letter. It reads in part, 
“I have determined that until you are removed from the United 
States you shall continue to be detained in custody of the Service. 
In reaching this decision I considered the nine factors listed below. 
I have also taken into consideration any material or statements 
that you may have submitted during the review process. There is 
no appeal from this decision. Your case will be reviewed again on 
December 2, 1999. This letter constitutes notice of that review. 
You will receive no further notice.” See Respondents’ Exhibit BB. 
Although the letter does not say what factors informed the de- 
cision to deny petitioner’s release, it lists the criteria prescribed by 
the Attorney General for such decision. See 8 C.F.R. §241.4 (1999). 

58a 

dence regarding the likelihood of Ma’s deportation to 
Cambodia. By stipulation, the parties have filed writ- 
ten materials on this and other issues in lieu of a hear- 
ing, and the record is now complete. 

ANALYSIS 

The Court has concluded that the government’s 
continued detention of Ma violates his right to sub- 
stantive due process if it is excessive in relation to the 
government’s interests in effectuating his deportation. 
See 7/13/99 Order at 2 (citing United States v. Salerno, 
481 U.S. 739, 747 (1987); Martinez v. Greene, 28 F. 
Supp. 2d 1275, 1282 (D. Colo. 1998); Joint Order at 9). 
Pursuant to the Court’s joint order, this requires the 
Court to “weigh Ma’s interest in liberty against the 
government’s interests in effectuating his removal, 
preventing his escape, and protecting the public.” Id. 

As a preliminary matter, the Court notes that the 
government’s earlier suggestion that Ma had a pending 
claim under an international torture convention was 
mistaken. In another clarification, the government 
notes that it has in fact requested travel documents for 
Ma from the Cambodian government, by letter of May 
5, 1999. There has apparently been no response. “For 
some time now, Cambodia has failed to issue travel 
documents to Cambodian nationals orderd removed 
from the United States.” Respondents’ Status Report 
and Recommendation at 8. 

59a 

It appears that the government’s successful removal 
of aliens to Cambodia will require a formal repatriation 
agreement between the two countries. The govern- 
ment claims that negotiation of such an agreement “is 
related to the status of negotiations between the 
United States and Vietnam.” Id. at 9. The government 
submits a declaration by an officer of the State Depart- 
ment—an advisor on East Asian affairs named James 
Hergen—that summarizes the negotiations between 
the United States and Vietnam on the topic of repatria- 
tion, spanning the past four or five years. Respondents’ 
Exhibit AA. Hergen notes that the Deputy Secretary 
of State recently “ permit[ted] negotiation of similar 
agreements with Cambodia and Laos, should that be 
appropriate.” Id. at ¶ 12. Hergen has recommended 
initiating such negotiations promptly. Id. at ¶ 13. 
Petitioner’s counsel reports that on September 4, 1999, 
officers of the State Department met with officers of 
the Cambodian Consulate in Washington, D.C. to dis- 
cuss the government’s preliminary proposals for a 
repatriation agreement. Petitioner’s Exhibit B at ¶ 6. 
The Consulate plans to send a report on the meeting, 
with the American proposal, to the Cambodian govern- 
ment. Id. 

Ma’s deportation to Cambodia is far from imminent. 
The evidence shows that the government has taken 
only the first step toward enabling deportations to 
Cambodia. Even the government says negotiations 
with Cambodia are dependent upon negotiations with 
Vietnam. Two judges of this Court have recently held 
that current negotiations with Vietnam do not establish 
a realistic chance of deporting Vietnamese nationals. 
See Huynh v. Reno, No. C99-177C (W.D. Wash., July 9, 
1999); Phan v. Smith, No. 98-234Z (W.D. Wash., July 9, 

60a 

1999). Similarly, there is not a realistic chance that the 
government will accomplish Ma’s deportation to Cam- 
bodia. His indefinite detention therefore violates his 
right to substantive due process. 

Even if there were a realistic chance of deporting Ma, 
the government has not shown a strong interest in con- 
tinuing his detention based upon his threat to the public 
or his proclivity to abscond. The government has never 
suggested he is a flight risk, and it has failed to advance 
a single reason for its belief that he is a danger to 
society, beyond the simple fact of his conviction.3 While 
the crime of which Ma was convicted is serious, it is not 
the kind that might justify indefinite detention.4 The 
record does not indicate his release with proper parole 
conditions would endanger the community. 

3 The District Director’s decision, as noted above, provides no 
reasons for denying Ma’s release. The report upon which he relied, 
however, contains abundant information about Ma’s relationships 
with his parents and siblings, employment prospects, and plans to 
avoid gang relations and criminal behavior, all of which oppose a 
finding of future dangerousness. See Respondents’ Exhibit BB. 
This report also demonstrates that Ma’s only “behavioral pro- 
blems” in detention was his planned participation in a hunger 
strike, and that his “history of gang activities” consists of the gang- 
related shooting for which he was convicted. See Respondents’ 
Status Report and Recommendation at 8, 29. 

4 Ma was only 17 years old at the time of his crime. The jury 
did not see his role in the crime to be as clear-cut as the govern- 
ment suggests, and the judge who presided over the trial sen- 
tenced Ma to only 38 months. The sentence could have been up to 
41 months in the standard range, and 120 months in an exceptional 
sentence for aggravating circumstances . 

61a 

CONCLUSION 

Thus, Ma’s interest in liberty clearly outweighs the 
government’s present interests in detaining him. His 
continued incarceration is excessive in relation to the 
government’s objectives, and therefore violates his 
Fifth Amendment right to substantive due process.5 
Ma’s petition for writ of habeas corpus is granted, and 
respondents are hereby ordered to release him, subject 
to appropriate conditions. 

The Clerk of the Court is directed to send copies of 
this order to all counsel of record. 

DATED this 29th day of September, 1999. 

/s/ ROBERT S. LASNIK 

ROBERT S. LASNIK 
United States District Judge 

5 The Court does not address the questions regarding pro- 
cedural due process further in this order, as it is unnecssary to re- 
solving Ma’s petition. 

62a 

APPENDIX E 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-35976 

D.C. No. C-99-151-L 

KIM HO MA, PETITIONER-APPELLEE 

v. 

JANET RENO, ATTORNEY GENERAL OF THE UNITED 
STATES; ROBERT COLEMAN, DISTRICT DIRECTOR OF 

THE IMMIGRATION AND NATURALIZATION SERVICE, 
SEATTLE, WASHINGTON; AND THE UNITED STATES 
IMMIGRATION AND NATURALIZATION SERVICE, 
RESPONDENTS-APPELLANTS 

[Filed: June 2, 2000] 

ORDER 

Before: REINHARDT, THOMPSON, T.G. NELSON, 
Circuit Judges. 

The panel has voted to deny the petition for rehear- 
ing and petition for rehearing en banc. 

The full court was advised of the petition for rehear- 
ing en banc. 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 the non- 
recused active judges in favor of en banc consideration. 
Fed. R. App. P. 35. 

63a 

The petition for rehearing and the petition for re- 
hearing en banc are denied. 

64a 

APPENDIX F 

[Seal omitted] 

U.S. Department of Justice 

Immigration and Naturalization Service 

HQCOU 90/16.51 

Office of the Executive Associate 
425 I Street NW 

Commissioner Washington, DC 20536 

Feb. 3, 1999 

MEMORANDUM FOR REGIONAL DIRECTORS 

FROM: Michael A. Pearson 

Executive Associate Commissioner 
Office of Field Operations 

SUBJECT: Detention Procedures for Aliens Whose 

Immediate Repatriation 
Is Not Possible or Practicable 

This memorandum clarifies the authority of District 
Directors to make release decisions and emphasizes 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 (INA). 

The District Director is required to review every ad- 
ministratively final order removal case before the 
ninety [90] day removal period mandated by § 241(a)(1) 
expires. 8 C.F.R. § 241.4 gives the District Director the 
authority to make release decisions beyond the removal 
period based on specific criteria in the regulation as set 
forth below. The regulation also provides that the Dis- 
trict Director should provide an alien with the oppor- 

65a 

tunity to demonstrate by clear and convincing evidence 
that he is not a threat to the community and is likely to 
comply with the removal order. The alien may be given 
this opportunity in writing, orally, or a combination 
thereof. The District Director must ensure that the file 
is documented with respect to the alien’s opportunity to 
present factors in support of his release, and the rea- 
sons for the custody or release decision. 

The District Director cannot delegate the authority 
to render the ultimate custody or release decision be- 
yond those directly responsible for detention within his 
district or Service Processing Center (SPC). Such indi- 
viduals may include the Deputy District Director, the 
Assistant Director for Detention, the Officer in Charge 
(OIC) of a detention center, or persons acting in such 
capacities. These persons must be specifically desig- 
nated by the District Director. 

Although the District Director cannot relinquish 
his decision-making authority, he may utilize various 
methods to assist in reaching a determination. For 
example, he may designate an individual or group of in- 
dividuals to review the alien file and obtain any other 
relevant information. To the extent Districts have a 
high volume of post order cases, the District Director 
may also request detail assistance from other districts, 
the region and/or headquarters for the purpose of con- 
ducting custody reviews. The District Director may 
use information obtained by local staff or detailees to 
make his custody decision. Detail assistance may be co- 
ordinated through John Castro, at Headquarters De- 
tention and Deportation. 

Every six months, the District Director must review 
the status of aliens detained beyond the removal period 

66a 

to determine whether there has been a change in cir- 
cumstances that would support a release decision since 
the 90 day review. Further, the District Director 
should continue to make every effort to effect the 
alien’s removal both before and after the expiration of 
the removal period. The file should document these ef- 
forts as well. 

When an alien is released pursuant to 8 C.F.R. 
§ 241.4 under an order of supervision, the order of 
supervision must specify the applicable conditions of 
supervision. In addition, the order of supervision must 
be signed by one of the parties authorized in 8 C.F.R. 
§ 241.5. 

Any alien described in 8 C.F.R. § 241.4(a), may be 
returned to custody subsequent to release under an 
order of supervision if such alien violates any of the 
conditions of the order of supervision. Any alien de- 
scribed in 8 C.F.R. § 241.4(b) who violates the condi- 
tions of the order of supervision is subject to the penal- 
ties described in § 243(b) of the INA. 

District Directors are advised that a detention re- 
view is subject to the provisions of 8 C.F.R. 
§ 236.1(d)(2)(ii) if the alien submits a written request to 
have his detention status reviewed by the District Di- 
rector. Under 8 C.F.R. § 236.1(d)(2)(iii), the alien may 
appeal the District Director’s decision to the Board of 
Immigration Appeals. Where the alien has not made a 
written request to have his custody status reviewed, 
however, there is no provision for appeal of the District 
Director’s decision to the Board of Immigration Ap- 
peals. See 8 C.F.R. § 241.4. 

67a 

8 C.F.R. § 241.4 Continued detention beyond the re- 
moval period. 

(a) Continuation of custody for inadmissible or 
criminal aliens. The district director may con- 
tinue in custody any alien inadmissible under 
§ 212(a) of the Act or removable under 
§ 237(a)(1)(C), 237(a)(1)(C) [sic], 237(a)(2), or 
237(a)(4) of the Act, or who presents a significant 
risk of noncompliance with the order of removal, 
beyond the removal period, as necessary, until 
removal from the United States. If such an alien 
demonstrates by clear and convincing evidence 
that the release would not pose a danger to the 
community or a significant flight risk, the district 
director may, in the exercise of discretion, order 
the alien released from custody on such condi- 
tions as the district director may prescribe, 
including bond in an amount sufficient to ensure 
the alien’s appearance for removal. The district 
may consider, but is not limited to considering, 
the following factors: 

(1) The nature and seriousness of the alien’s 
criminal convictions; 

(2) Other criminal history; 

(3) Sentence(s) imposed and time actually 
served; 

(4) History of failures to appear for court 
(defaults); 

(5) Probation history; 

(6) Disciplinary problems while incarcerated; 

68a 

(7) Evidence of rehabilitative effort or recidi- 
vism; 

(8) Equities in the United States; and 

(9) Prior immigration violations and history. 

(b) Continuation of custody for other aliens. Any 
alien removable under any section of the Act 
other than § 212(a), 237(a)(1)(C), 237(a)(2), or 
237(a)(4) may be detained beyond the removal 
period, in the discretion of the district director, 
unless the alien demonstrates to the satisfaction 
of the district director that he or she is likely to 
comply with the removal order and is not a risk 
to the community. 

Note: these instructions also apply to criminal alien 
deportation cases under former INA § 242 where the 
aliens are subject to required detention under current 
INA § 236(c). See October 7, 1998 memorandum en- 
titled INS Detention Use Policy. 

69a 

APPENDIX G 

[Seal omitted] 

U.S. Department of Justice 

Immigration and Naturalization Service 

HQOPS 50/14.6-C 

Office of the Executive Associate 
425 I Street NW 

Commissioner Washington, DC 20536 

Aug. 6, 1999 

MEMORANDUM FOR All REGIONAL DIRECTORS 

District Directors 
Office of Field Operations 

FROM: Michael A. Pearson 

Executive Associate Commissioner 
Office of Field Operations 

SUBJECT: Interim Changes and Instructions for 

Conduct of Post-order Custody Reviews 

This memorandum addresses several changes to cur- 
rent procedures regarding post-order detention proce- 
dures for aliens whose immediate repatriation is not 
possible or practicable.1 Current regulations, 8 C.F.R. 
§ 241.4, provide that the decision whether to detain or 

1 See the memoranda from Michael Pearson, Executive 
Associate Commissioner for Field Operations, February 3, 1999: 
Detention Procedures for Aliens Whose Immediate Repatriation is 
Not Possible or Practicable, and April 30, 1999: Supplemental 
Detention Procedures. 

70a 

release such an alien is made by the District Director. 
In the near future, the Service will begin the rule- 
making process to propose a program modeled after 
the Cuban Review Plan of 8 CFR section 212.12 to 
address post-order custody cases. The custody of 
Mariel Cubans will continue to be governed by 8 CFR 
212.12. Until this more permanent program is imple- 
mented, several changes are being made to the current 
procedures set forth in the memoranda of February 3, 
and April 30, 1999. These changes are effective imme- 
diately. All offices will follow identical procedures in 
conducting reviews of post-order custody cases, using 
the forms listed at the conclusion of this memorandum. 
The forms will be distributed to all offices. 

The Attorney General and the Commissioner have 
agreed that these procedures, as detailed below under 
the heading “Interim Procedures,” will include written 
notice to the alien of custody reviews. The notice will 
advise the alien that he may present information sup- 
porting a release, and he may be assisted by an at- 
torney or other person at no expense to the govern- 
ment. The alien will receive an in-person interview at 
the first custody review following expiration of the 
removal period. Thereafter, the alien will receive a 
separate notice of the opportunity for an annual inter- 
view. The alien will be provided written reasons for 
INS custody decisions. 

The District Director will continue to make custody 
determinations within the ninety-day removal period 
under the memoranda of February 3, and April 30, 
1999. The next scheduled review shall be nine months 
from the date of the final administrative order of re- 
moval or six months after the last review, whichever is 

71a 

later. That review will include an interview and is sub- 
ject to review at INS Headquarters if the District Di- 
rector has determined that the alien should remain in 
custody. Thereafter, reviews will be conducted at six- 
month intervals, alternating between a file review by 
the District Director (without an interview unless the 
District Director, in his discretion, determines that one 
would be useful, and without Headquarters review), 
and a review with the opportunity for an interview at 
the alien’s request and with Headquarters review. 

No case subject to a Headquarters review will be 
considered a final custody decision until the District 
level decision has been ratified through the Head- 
quarters review or resolved after referral back to the 
District. If the Headquarters reviewer concludes that 
the District Director should reconsider his decision or 
that further documentation is required to support the 
District Director’s decision, the case shall be forwarded 
to the Regional Office with a cover memorandum and 
instructions to refer the case back to the District for 
further consideration or documentation. The Head- 
quarters reviewer shall detail the issues that resulted 
in the referral and forward the case to the Regional 
Office. 

Regional Directors are responsible for working with 
the District Director to comply with the Headquarters 
instructions on referrals. In addition, the Regional Di- 
rector is responsible for preparation of statistics on the 
custody reviews conducted in each district. 

INTERIM PROCEDURES 

(1) Pursuant to the provisions of 8 C.F.R. § 241.4, 
the District Director will continue to conduct a 

72a 

custody review of administratively final order 
removal cases before the ninety-day removal pe- 
riod mandated by § 241(a)(1) expires for aliens 
whose departure cannot be effected within the 
removal period. 

(2) These procedures apply to any alien ordered re- 
moved who is inadmissible under § 212, remov- 
able under 237(a)(1)(C), 237(a)(2), or 237(a)(4) or 
who has been determined by the Attorney Gen- 
eral to be a risk to the community or unlikely to 
comply with the order of removal. They cover 
aliens convicted of an aggravated felony offense 
who are subject to the provisions of old INA 
§ 236(e)(1)-(3), and non-aggravated felon aliens 
with final orders of exclusion. Mariel Cubans are 
excluded from these procedures as parole re- 
views for them are governed by 8 C.F.R. 
§ 212.12. The ninety-day review will be con- 
ducted pursuant to the instructions set out in the 
memoranda of February 3 and April 30, 1999. 
District Directors may, in their discretion, inter- 
view the alien if they believe that an interview 
would facilitate the custody review. 

(3) Following expiration of the ninety-day removal 
period, the next scheduled review provided by 
the District Director shall be nine months from 
the date of the final administrative order of re- 
moval or six months after the last review, which- 
ever is later. Written notice shall be given to 
each alien at least 30 days prior to the date of the 
review. The notice will be provided either by 
personal service or certified mail/return receipt. 
The notice shall specify the factors to be con- 

73a 

sidered and explain that the alien will be pro- 
vided the opportunity to demonstrate by clear 
and convincing evidence that he is not a threat to 
the community and is likely to comply with the 
removal order. 

(4) For the review discussed in paragraph 3 above, 
an interview is mandatory and the District Di- 
rector’s preliminary decision will be subject to 
Headquarters review. Thereafter, custody re- 
views will be conducted every six months, alter- 
nating between District Director file reviews 
and a review that includes the opportunity for an 
interview at the alien’s request and a Head- 
quarters review of detention decisions. A se- 
parate notice will advise the alien of the oppor- 
tunity for the interview. The alien may check 
the appropriate box on the notice, returning the 
form provided within 14 calendar days so that an 
interview may be scheduled. The District Di- 
rector has the discretion to schedule further in- 
terviews if he determines they would assist him 
in reaching a custody determination. 

(5) The alien must be advised that he may submit 
any information relevant to support his request 
for release from detention, either in writing, 
electronically, by U.S. mail (or any combination 
thereof), or in person if an interview is con- 
ducted. The alien must also be advised that he 
may be represented by an attorney, or other 
person at no expense to the government. If an 
interview has been scheduled, the alien’s repre- 
sentative may attend the review at the sched- 
uled time. 

74a 

(6) The District Director may delegate custody 
decisions to the level of the Assistant District 
Director, Deputy Assistant District Director, or 
those acting in their capacity. Custody deter- 
minations will be made by weighing favorable 
and adverse factors to determine whether the 
detainee has demonstrated by clear and con- 
vincing evidence that he does not pose a threat 
to the community, and is likely to comply with 
the removal order. See 8 C.F.R. § 241.4. The 
alien’s past failure to cooperate in obtaining a 
travel document shall be considered an adverse 
factor in determining eligibility for release. See 
INA § 241(a)(1)(C) Suspension of Period. The 
fact that the alien has a criminal history does not 
create a presumption in favor of continued 
detention. 

(7) Within thirty days of the District Director’s cus- 
tody review, the alien must receive written 
notification of a custody decision. All notification 
will be provided either by personal service or 
certified mail/return receipt. A decision to re- 
lease should specify the conditions of release. A 
decision to detain will clearly delineate the 
factors presented by the alien in support of his 
release, and the reasons for the District Di- 
rector’s decision. 

(8) With respect to those detain decisions that are 
subject to Headquarters review under para- 
graph 4, the District Director’s determination 
that the alien should be detained is to be re- 
garded as only preliminary. In those instances, 
the Regional Directors will forward the pre- 

75a 

liminary detain decisions to Headquarters for re- 
view. Headquarters review will be conducted by 
Operations and Programs representatives (with 
assistance from the Office of General Counsel as 
necessary). Where the Headquarters reviewer’s 
decision concurs with the District Director’s, the 
Headquarters reviewer will write a supporting 
statement and will seek concurrence from a 
second Headquarters reviewer. Where the two 
reviewers differ, a panel of three Headquarters 
reviewers will conduct a further review of the 
case. The Headquarters panel may ratify the 
District Director’s decision, return the case to 
the District Director to reconsider his decision, 
or determine that additional information is re- 
quired to make a decision. The Headquarters 
review must be completed within thirty days of 
file receipt. The Headquarters review con- 
clusions will be forwarded to the Regional Di- 
rector for distribution to and appropriate action 
by the District Director. 

(9) The District Director will review his decision in 
light of the Headquarters recommendations and 
will notify the alien of the final custody deter- 
mination within thirty days of completion of the 
Headquarters review. 

(10) The District Director should make every effort 
to effect the alien’s removal both before and 
after expiration of the removal period. All steps 
to secure travel documents must be fully docu- 
mented in the alien’s file. However, if the Dis- 
trict Director is unable to secure travel docu- 
ments locally after making diligent efforts to do 

76a 

so, then the case shall be referred to Head- 
quarters OPS/DDP for assistance. More detailed 
instructions will be issued from the Executive 
Associate Commissioner for Operations by sepa- 
rate memorandum. 

(11) On August 30, 1999, and on the last workday of 
each quarter (September, December, March, 
June) each district shall submit a custody review 
status report to its Regional office and to 
Headquarters. There will be more detailed 
instructions issued on reporting procedures at a 
later time. 

FORMS [to be distributed] 

(a) Notice to Alien 
(b) Notice of Interview 
(c) Detained Alien Custody Review Worksheet 
(d) Decision of Custody Review 
(e) Decision to Continue Detention 
(f ) 

Decision to Release 
(g) Custody Review Status Report 

77a 

APPENDIX H 

U.S. Department of Justice 

[Seal omitted] 

Immigration and Naturalization Service 

Western Region, Seattle District 

Office of the District Director 

813 Airport Way South 

Seattle, WA 98134 
206-553-0719 
Fax 206-553-0936 

June 2, 1999 

Name: Kim Ho MA, A27 365 395 
Address: Regional Justice Center/King County Jail 

Dear Mr. MA: 

An officer of this Service recently reviewed your case. 
The officer has presented the results of that review to 
me so that I may make a decision regarding your cus- 
tody status. 

Pursuant to the authority contained in Sections 236 and 
241 of the Immigration and Nationality Act, and parts 
236 and 241 of the Code of Federal Regulations, I have 
determined that until you are removed from the United 
States you shall continue to be detained in custody of 
this Service. 

In reaching this decision I considered the nine factors 
listed below. I have also taken into consideration any 
material or statements that you may have submitted 
during the review process. There is no appeal from this 
decision. 

Your case will be reviewed again on December 2, 1999. 
This letter constitutes notice of that review. You will 
receive no further notice. 

78a 

You may at any time submit to the District Director a 
request for redetermination of your custody status. 
That request must be supported by evidence that you 
will appear for all future immigration proceedings and 
that your presence in the community does not repre- 
sent a hazard to anyone. If you have been convicted of 
criminal offenses the evidence must be clear and con- 
vincing. Evidence must be presented in writing to the 
District Director through the officer handling your 
case. 

FOR THE DISTRICT DIRECTOR 

/s/ GEORGE L. MORONES 
GEORGE L MORONES 
Assistant District Director for 
Detention and Deportation 
Seattle, Washington 

[ ] cc: 
Attorney of Record or Representative 

Factors considered during custody review 

(1) The nature and serious- 
ness of the alien’s cri- 
minal convictions 
(2) Other criminal history; 
(3) Sentence(s) imposed 
and time actually 
served; 
(4) History of failures to 
appear for court (de- 
faults); 

(5) Probation history; 
(6) Disciplinary problems 
while incarcerated; 
(7) Evidence of rehabilita- 
tive effort or recidivism; 
(8) Equities in the United 

States; and 
(9) Prior immigration viola- 
tions and history. 

79a 

90 DAY CUSTODY REVIEW 

Sections in red are mandatory with each review. Sec- 
tions in blue require entry only upon first review or 
when there is any subsequent change. Blocks will auto- 
matically expand to fit text as it is entered. Tab from 
cell to cell to fill in data, then print. If you want to save 
the form, change the name then save it to a directory in 
your computer. 

Reviewing Officer: Michael A. Melendez 

Date: May 6, 1999 

Personal Data & Factors 

A Number: 
A27 365 395 

Last Name: 

MA First Name: Kim Ho 

DOB: 07/06/77 Nationality: Cambodia 

Martial Status: Single 

Spouse USCLPR? N/A 

# Minor Children? N/A 

Other family 
factors? The Subject’s father, mother and two 
brothers reside in the Seattle area. He 
also has an Aunt and Uncle who also 
reside in the Seattle area as well. 

INS History 

Entry Data: 04/26/85 
LPR Since: 01/21/87 
Deportation Charge: 237(a)(2)(A)(iii) 
IJ Dec. Date: 09/12/97 

80a 

BIA Dec. Date: 10/26/98 
App. Court Dec. Date: N/A 
Into Custody On: 

06/06/97 Agg. Fel (Y/N): Y 
Previous INS Bond? Date: N/A 

Amount: N/A 

Disposition: N/A 

Detention Category 1 
Does detainee have a history of violence? 
Y 

If yes, explain here: 
Subject was convicted 

Manslaughter in the 1st Degree. 

Criminal History (add separate sheet if necessary, or RAP 

sheet) 

Agg 

Felony? 

Date Court/Location Convicted of Sentence (y/n) 

3/1/96 Superior/King 

Co. 

Manslaughter in 

the 1st Degree 

38 Months Y 

Institutional History – Positive or Negative (Comment 

required - “Nothing significant” is acceptable) 

On 10/20/97, the Subject was transferred to King Co. Jail, Seattle, 

WA. for his involvement in a planned Hunger Strike that occurred 

while in Service custody. 

Medical/Mental History (Comment required –“Nothing 

significant” is acceptable) 

Nothing Significant 

Community Concerns 

Subject was a member of the “Local Asian Boyz” (LAB) in 
the Seattle area and was convicted of Manslaughter in the 1 

st 

Degree. Subject has no other criminal record. 

81a 

Officer Comments 

(If there has been contact or correspondence with the detainee, 

family, or attorney, synopsize & assess here. Also, particularly 

address efforts to obtain travel documents and alien’s efforts to 

assist or impede obtaining them.) 

The Subject is a native and citizen of Cambodia who 
entered the United States as a Refugee on or about 
April 26, 1985. He was accorded the status of a perma- 
nent resident on January 21, 1987. On March 1, 1996, he 
was convicted of Manslaughter in the 1st Degree in the 
Superior Court of Washington for King County. For 
that offense, the term of imprisonment imposed was 38 
months. 

On June 6, 1997, the Subject was processed into 
Service custody. He was then ordered removed by the 
Immigration Judge on September 12, 1997. He re- 
served appeal to the BIA and on October 26, 1998, the 
BIA dismissed the appeal. On May 5, 1999, the Service 
requested a Travel Document from the Consulate 
General of Cambodia in order to facilitate the Subject’s 
removal. The Subject did not impede our procedure in 
obtaining a Travel Document. We have not received a 
response from the Consulate General of Cambodia on 
the outstanding Travel Document. 

On October 20, 1997, he was transferred to King 
County Jail/Seattle for his involvement in a planned 
Hunger Strike within the Service Detention Center. 
He was identified as one of the more vocal detainees 
within the dorms. The Subject was housed at King 
County Jail/Seattle for over a year before being trans- 
ferred to the Immigration Pod within King County 

82a 

Jail/Regional Justice Center. While housed within King 
County Jail/Seattle, there was no record of any 
behavioral problems. 

When given the opportunity to make an oral state- 
ment in regard to his custody review, the Subject along 
with his attorney Jay Stansell, emphasized the follow- 
ing topics: 

- The Subject was convicted of Manslaughter in 
the 1st Degree on 03/01/96. He was sentenced to 
38 months, but only served 26 months in the 
Washington State Department of Corrections 
System. This was his only criminal conviction 
both as a juvenile and adult. 

- The Subject was 17 years old when he was 
convicted of Manslaughter in the 1st Degree. 
When he was 19 years old he was transferred 
into Service custody on 06/06/97. Now he is 21 
years old and has been incarcerated for 47 
months. This is combining both time served with 
the State Department of Corrections (DOC) and 
INS. 

- If released the Subject plans on completing his 
education by obtaining a GED. He was in the 
10th grade when he was convicted of Man- 
slaughter in the 1st Degree. He was given the 
opportunity to complete courses towards obtain- 
ing a GED while incarcerated with the State 
DOC but he was transferred to another facility. 
At the other facility he was not afforded the op- 
portunity to complete courses towards obtaining 
a GED. 

83a 

- He also stated that if released he would like to 
“Educate” not only his brothers but also his com- 
munity on the consequences of committing crimi- 
nal activity. He was not afforded this knowledge 
when he was a teenager growing-up in a pre- 
dominantly African American community. He 
further noted that growing-up in a community 
where he was in the minority, constantly being 
picked on by the majority, they had to bond 
together in order to stand-up for themselves. 

- He was a member of the Local Asian Boyz 
(LAB), affiliated in the Seattle area. This gang 
affiliation provided him feeling of acceptance 
that he was not obtaining from his community. 
When he was questioned on his current affilia- 
tion with the LAB’s he proceeded to affirm that 
there is “No” affiliation at this time and that 
there would be no affiliation if released. 

- Please refer to the Officer’s Comments Con- 
tinuation Sheet. 

84a 

OFFICER’S COMMENTS CONTINUATION 

- The Subject’s family is very supportive. They 
visit him every Sunday and have provided the 
Service with letters affirming their support for 
their son and requesting his release from 
custody. His father is 71 years old and 
handicapped. If released, it would allow him to 
assist his father in his everyday activities that 
are difficult for him. 

- The Subject further emphasized about his re- 
lationship with both of his brothers. He has one 
brother who is 15 years old and is in constant 
communication with him. His brother looks to 
the Subject as a guide for him. The Subject is 
very involved with his brother’s activity both in 
school and within the community. This is to 
ensure that he does not follow in his footsteps 
and to value the opportunity that he has here in 
the United States. His brother has expressed 
that he would like to become a Youth Counselor 
in the future. 

- The Subject’s second brother is 31 years old and 
runs his own business. His brother has a job 
waiting for him if released from Service custody. 

The Subject completed by stating that he has served 
more time with INS than he did for the crime for 
which he was convicted. He would also like to have the 
opportunity that was never given to him which is to be 
released from custody and prove that he is not a threat 
to society, as it is today. 

85a 

The Subject’s family and members of his community 
have provided letters of support requesting that he be 
released from Service custody. There is also a letter 
offering employment from his brother if released. 

Officers are referred to 8 CFR 241.1 for an extensive 
list of factors to be considered by the DD in reaching a 
decision to continue in custody, or release an alien 
during the past-90 day review period. 

Supervisory Review by B. Brown on 5-24-99 
Supv. Comment: 

/s/ [Illegible] 

Supervisory Signature 

86a 

ACTION BY DISTRICT DIRECTOR 

D.D. Comment: 

Schedule psych evaluation prior to next review 

District Director Decision: (check one): 

[x] Continue to detain pursuant to 8 CFR 241.4. 

[ ] Release under Order of Supervision pursuant to 
8 CFR 241.4 

Conditions: Bond in the amount of $ _______ 

Other: [ ] All conditions listed under 
8CFR241.5(a) 

Except 241.5(a) [ ] & [ ] & [ ] 

[ ] and 

[ ] Employment authorized 

For the District Director 

/s/ GEORGE L. MORONES 

GEORGE L. MORONES 
Assistant District Director, 
Detention & Deportation 

Date 6/15/99 

87a 

APPENDIX I 

September 29, 1999 

George Morones 
Supervisory Deportation Officer 
Detention & Deportation 
Seattle District Office 
attn: Natalie Asher 

Mr. Morones: 

Attached please find our review of Kim Ho Ma, A27 365 
395. As you can see, Mr. Curi and I were in concur- 
rence in recommending that this individual remain in- 
carcerated pending further review. 

Said decision was predicated in large part due to the 
nature of his criminal record (1st degree manslaughter), 
as well as his institutional record. In light of this, we 
were unable to conclude that Mr. Ma would remain non- 
violent and not violate the conditions of release were 
we to have rendered a favorable recommendation. 

Should you have any questionsor [sic] require addi- 
tional information, please contact me at (202) 616-7783 
or e-mail. 

Thank you 

/s/ ROBERT A. MATTEY 

ROBERT A. MATTEY JR. 
Staff Officer HQ D&D 
Cuban Review Program 
Washington, D.C. 

88a 

INS “A” NUMBER A 27 365 395 BOP REG NUMBER N/A 
NAME _Kim Ho Ma_______________________________ 
PANEL REVIEW DATE 05-06-1999 
PLACEMENT CODE ____________________________ 

1. IT IS RECOMMENDED THAT THIS DETAINEE BE 
(XXX) DETAINED BECAUSE: 
( ) RELEASED 

A careful review of Mr. Ma’s criminal record reveals 
that he was arrested and convicted on or about 03-01- 
1996 for 1st degree manslaughter, for which he was 
sentenced to serve 38 months. Subsequent to his 
incarceration, he participated in a hunger strike on 10- 
27-97 while incarcerated in the King County Jail in 
Seattle, Washington. Given the assaultive nature of 
the above-mentioned criminal offense, it is the recom- 
mendation of this panel member that he remain incar- 
cerated pending another review. 

/s/ ROBERT MATTEY 

ROBERT MATTEY 

SIGNATURE COMMITTEE MEMBER 

ROBERT A. MATTEY JR. 

PRINT NAME OF MEMBER 

09-30-99 

DATE 

89a 

2. IT IS RECOMMENDED THAT THIS DETAINEE BE 
( ) DETAINED BECAUSE: 
( ) RELEASED 

/s/ TOMAS CURI 

TOMAS CURI 

SIGNATURE COMMITTEE MEMBER 

TOMAS CURI 

PRINT NAME OF MEMBER 

9/30/99 

DATE 

While detainee has had strong famil 
his crime, and detention incident p 
writer from assuming he will remain 
or abide by conditions of his parole 

90a 

APPENDIX J 

Section 241.4 of Title 8 of the Code of Federal 
Regulations provides: 

§ 241.4 
Continued detention beyond the removal 

period. 

(a) Continuation of custody for inadmissible or 
criminal aliens. The district director may continue in 
custody any alien inadmissible under section 212(a) of 
the Act or removable under section 237(a)(1)(C), 
237(a)(2), or 237(a)(4) of the Act, or who presents a 
significant risk of noncompliance with the order of 
removal, beyond the removal period, as necessary, until 
removal from the United States. If such an alien 
demonstrates by clear and convincing evidence that the 
release would not pose a danger to the community or a 
significant flight risk, the district director may, in the 
exercise of discretion, order the alien released from 
custody on such conditions as the district director may 
prescribe, including bond in an amount sufficient to 
ensure the alien’s appearance for removal. The district 
may consider, but is not limited to considering, the 
following factors: 

(1) The nature and seriousness of the alien’s 
criminal convictions; 

(2) Other criminal history; 

(3) Sentence(s) imposed and time actually served; 

(4) History of failures to appear for court 
(defaults); 

(5) Probation history; 

91a 

(6) Disciplinary problems while incarcerated; 

(7) Evidence of rehabilitative effort or recidivism; 

(8) Equities in the United States; and 

(9) Prior immigration violations and history. 

(b) Continuation of custody for other aliens. Any 
alien removable under any section of the Act other than 
section 212(a), 237(a)(1)(C), 237(a)(2), or 237(a)(4) may 
be detained beyond the removal period, in the dis- 
cretion of the district director, unless the alien demon- 
strates to the satisfaction of the district director that he 
or she is likely to comply with the removal order and is 
not a risk to the community.