No. 00-38 

In the Supreme Court of the United States 

JANET RENO, ATTORNEY GENERAL, 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 

REPLY BRIEF FOR THE PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ........ 
10 

Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000) .................... 
1, 2 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................... 
10 

Ngo v. INS, 192 F.3d 390 (3d Cir. 1999) ............................ 
2, 3 

Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 
1999), petition for cert. pending, No. 99-7791 ............. 
1, 3, 5 

Statutes and regulation: 

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

1 

8 U.S.C. 1231(a)(6) (Supp. IV 1998) ......... 
1, 2, 3, 4, 6, 7, 8, 9, 10 

8 C.F.R.: 

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

4 

Section 241.4(a) ...................................................................... 
8 

Miscellaneous: 

65 Fed. Reg. 40,540 (June 30, 2000) ....................................... 

7 

1997 Statistical Yearbook of the Immigration and 

Naturalization Service (Oct. 1999) .................................... 5 

(I) 

In the Supreme Court of the United States 

No. 00-38 
JANET RENO, ATTORNEY GENERAL, 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 

REPLY BRIEF FOR THE PETITIONERS 

The court of appeals’ ruling that the Attorney General is 
without authority under 8 U.S.C. 1231(a)(6) (Supp. IV 1998) 
to detain respondent beyond the 90-day removal period set 
forth in 8 U.S.C. 1231(a)(1)(A) (Supp. IV 1998) contradicts 
the express language of Section 1231(a)(6), which provides 
that certain aliens—including aggravated felons and any 
alien 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” (emphasis added). The Ninth Circuit’s ruling 
squarely conflicts with the decision of the Tenth Circuit in 
Duy Dac Ho v. Greene, 204 F.3d 1045 (2000), which held that 
the Attorney General is authorized by Section 1231(a)(6) to 
detain such aliens and that that detention is constitutional. 
The result reached by the Ninth Circuit also cannot be rec- 
onciled with Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 
1999), petition for cert. pending, No. 99-7791, which sus- 
tained the continued detention of an alien under Section 
1231(a)(6) in comparable circumstances. The ruling below 
significantly hinders the Attorney General’s ability to 
enforce the immigration laws and to protect the public from 
criminal aliens in the Ninth Circuit, which covers a 

(1) 

2 

substantial percentage of the aliens under final orders of 
removal who have been detained under Section 1231(a)(6). 
Review by this Court therefore is plainly warranted to 
determine the scope of the Attorney General’s detention 
authority under Section 1231(a)(6). 

1. Respondent concedes (Br. in Opp. 17, 22) that the 
Ninth Circuit’s decision in this case squarely conflicts with 
the Tenth Circuit’s decision in Ho. Respondent nonetheless 
contends (id. at 13, 17) that the Court should not resolve the 
conflict until the Tenth Circuit decides another case raising 
the issue. Respondent does not deny, however, that the 
Tenth Circuit’s decision in Ho is final and constitutes binding 
precedent in that circuit. The circuit conflict therefore is 
ripe for review.1 Moreover, the Third Circuit also has held 
that Section 1231(a)(6) authorizes the detention of aliens 
beyond the 90-day removal period even though they cannot 
be promptly removed. Chi Thon Ngo v. INS, 192 F.3d 390 
(1999); see Pet. 23 n.14.2 

1 Contrary to respondent’s contention (Br. in Opp. 17), the fact that, in 
light of Ho, an alien has sought initial en banc consideration in another 
case raising the same issues in the Tenth Circuit does not render the 
square conflict between the Ninth and Tenth Circuits unripe for review. 
To the contrary, it confirms that Ho is now binding circuit precedent. 
Furthermore, although Judge Brorby, in his dissent in Ho, disagreed with 
the majority’s constitutional ruling, he agreed with the majority that the 
“plain language” of Section 1231(a)(6) authorizes the Attorney General to 
detain aliens in circumstances such as these pending their removal. 204 
F.3d at 1060. There accordingly is no reason to believe that the Tenth 
Circuit would change its view on the statutory issue even if it granted 
rehearing en banc on the constitutional issue. 

2 The Third Circuit held in Ngo that the text of Section 1231(a)(6) 
authorizes the Attorney General to detain an alien beyond the 90-day 
removal period even where the progress toward the alien’s ultimate 
removal is “agonizingly slow.” 192 F.3d at 398. As respondent points out 
(Br. in Opp. 16 n.16), Ngo involved an excludable alien rather than an 
alien, like respondent, who previously was a lawful permanent resident. 
Section 1231(a)(6), however, now governs the detention of aliens in both 
categories. Although the Third Circuit stated in the portion of its opinion 
rejecting a constitutional challenge to the detention that it was not ad- 

3 

The result in this case likewise cannot be reconciled with 
Zadvydas, which upheld the continued detention of an alien 
in comparable circumstances. The Fifth Circuit in that case 
did not question the Attorney General’s statutory authority 
to detain the alien, see 185 F.3d at 286 (Section 1231(a)(6) 
“authorizes detention but makes it discretionary beyond an 
initial ninety day period”), and it held that the alien’s contin- 
ued detention (subject to periodic review of his 
dangerousness and flight risk) comported with due process, 
even though there was not yet a country willing to accept his 
return and it would be “difficult at best” to locate such a 
country. Id. at 291. The Fifth Circuit concluded that, 
“[g]iven the traditional deference we show to the other 
branches in matters of immigration policy, judicial intrusion 
should not be considered, particularly where there are rea- 
sonable avenues for parole, until there is a more definitive 
showing that deportation is impossible.” Id. at 294. (empha- 
sis added). It is clear that Zadvydas would be resolved 
differently by the Ninth Circuit, which requires the 
immediate release of an alien who cannot be removed in the 
reasonably foreseeable future. See Pet. App. 31a. 

In the response we filed last May to the certiorari petition 
in Zadvydas, we pointed out that the result in that case is 
inconsistent with the result reached by the Ninth Circuit in 
this case. 99-7791 Br. in Opp. 16. We nevertheless opposed 
review in Zadvydas at that time because no court of appeals 
had reached a contrary result on the constitutional issue, the 
Fifth Circuit had not addressed (and the petitioner did not 
present to this Court) the statutory argument raised by 
respondent in this case, and review by the Court of the 
constitutional issue in Zadvydas would be premature in light 

dressing the situation of aliens other than those who are excludable (see 
192 F.3d at 398 n.7), it did not suggest that the text of Section 1231(a)(6) 
would apply differently to the two categories of aliens as a statutory 
matter. 

4 

of the conflicting rulings by the Ninth and Tenth Circuits on 
the antecedent question of statutory interpretation, which 
the government had then sought to eliminate by filing a 
petition for rehearing en banc in this case. Id. at 16-18. 
Subsequently, however, we informed the Court by letters 
dated June 9 and 20, 2000, that the Ninth Circuit had denied 
rehearing en banc and that the Solicitor General had author- 
ized the filing of a certiorari petition in this case. The Court 
did not act on the certiorari petition in Zadvydas after we 
submitted those letters, and it remains pending. 

We have now concluded – in light of the denial of rehear- 
ing en banc in this case, the subsequent filing of this 
certiorari petition and respondent’s brief in opposition—that 
the Court should grant certiorari in Zadvydas as well as in 
this case. In his brief in opposition in this case, respondent 
places central reliance on the argument that the Ninth Cir- 
cuit’s statutory interpretation is supported by the doctrine 
that statutes should be interpreted in a manner that avoids a 
serious constitutional question See Br. in Opp. i, 3, 11, 14, 
18-19, 26, 31-32. Because the constitutional arguments that 
respondent relies upon in defense of the Ninth Circuit’s 
statutory ruling were rejected by the Fifth Circuit in 
Zadvydas, we believe that it would be appropriate for the 
Court to grant certiorari in this case and in Zadvydas to 
resolve both the statutory and the constitutional challenges 
to detention under Section 1231(a)(6) at the same time. 

Respondent misapplies the constitutional avoidance doc- 
trine by repeatedly characterizing his detention as “inde- 
finite,” which in his view raises a serious constitutional 
question in these circumstances. See Br. in Opp. i, 3, 11, 18, 
20, 26, 28, 30, 32, 34. As we explain in the certiorari petition 
(at 26), however, the comprehensive administrative pro- 
cedures for review of aliens in respondent’s position (see 8 
C.F.R. 241.4; Pet. App. 64a-76a, 90a-91a) forecloses any char- 
acterization of his detention as permanent or indefinite. Pet. 
26-28. Respondent was afforded an ongoing possibility of 

5 

release if he no longer posed a risk of danger or flight. And 
INS’s detention of respondent will necessarily cease upon his 
removal from this country—a matter on which progress is 
continuing to be made through international negotiations 
(see Pet. 17 n.10).3 See Zadvydas, 185 F.3d at 291, 294 
(alien’s prolonged detention pending removal is not per- 
manent or indefinite because the alien “may be released 
when it is determined that he is no longer either a threat to 
the community or a flight risk”; the alien is entitled to auto- 
matic, periodic administrative review of his custody; and it 
has not been clearly established that there is no meaningful 
possibility of locating a country that would accept the alien’s 
removal or that removal is “impossible”). In any event, the 
Ninth Circuit’s statutory interpretation is not limited to 
“indefinite” detention; it prohibits even one day of detention 
of an alien in respondent’s position. 

2. Quite aside from the existence of conflicting rulings in 
other circuits, the adverse impact of the decision below 

3 Respondent’s discussion (Br. in Opp. 36-37 & nn.33, 34) of informa- 
tion concerning the government’s ongoing negotiations with Cambodia 
over return of its nationals disregards the reality that the Executive 
Branch is dealing with ever-shifting international conditions and relations 
with various countries that are always difficult to predict, and it highlights 
the difficulties presented by a rule that requires federal courts to make 
their own predictions about the likelihood of removing aliens to particular 
countries. See Pet. 16 n.9, 29-30. 

Published INS statistics show that the INS successfully removed two 
Cambodian nationals in fiscal year 1994, 14 in 1995 (two of whom were 
criminals), four in 1996, and ten in 1997. 1997 Statistical Yearbook of the 
Immigration and Naturalization Service 180, 183 (Oct. 1999). We have 
been informed by the INS that the two removed in 1994, ten of the 14 in 
1995, one of the four in 1996, and two of the ten in 1997 were removed to 
Cambodia. We have been further informed by the INS that it removed 16 
Cambodians to Cambodia in 1998, 13 in 1999, and seven in the first ten 
months of fiscal year 2000. The INS’s ability to remove such aliens was 
based on varying circumstances, such as possession of current travel 
documents or the alien’s family obtaining travel documents directly from 
the Cambodian government. 

6 

within the Ninth Circuit itself has grown substantially even 
since the certiorari petition was filed. See Pet. 15-16. As of 
September 15, 2000, there are approximately 487 habeas 
corpus actions currently pending in the district courts in the 
Ninth Circuit and approximately 149 appeals currently 
pending in the Ninth Circuit involving legal issues that are 
the same or substantially similar to those presented by this 
case, and the Ninth Circuit has already summarily affirmed 
district court release orders in eleven additional cases in 
light of the decision below. So long as the Ninth Circuit’s 
decision in this case stands as controlling precedent in that 
Circuit, the district courts are required in such cases to 
order the release by the INS of any alien who is situated 
similarly to respondent, regardless of the degree of danger 
or risk of flight he presents if released. 

Respondent attempts to discount that broad impact by 
asserting (Br. in Opp. 14) that the courts in the Ninth Circuit 
are not summarily releasing aliens, but “continue to reach 
individualized release decisions based upon the facts of the 
particular case.” See also id. at 23; Br. in Opp. App. 21a-24a. 
Those assertions are misleading. Under the Ninth Circuit’s 
ruling, the facts pertaining to the risk of danger or flight 
posed by the release of a particular alien are wholly 
irrelevant if a court determines that there is not a rea- 
sonable likelihood that the alien will be removed in the rea- 
sonably foreseeable future. Pet. App. 23a, 25a. Accordingly, 
when a court finds that there is not a reasonable likelihood of 
removing an alien in the reasonably foreseeable future, the 
alien is ordered released, regardless of the basis for the 
Attorney General’s decision under Section 1231(a)(6) to 
detain the alien. Indeed, respondent himself elsewhere 
insists (Br. in Opp. 4 n.2) that the risk of danger or flight 
posed by his release is not relevant to the question of 
statutory construction presented by this case—an assertion 
that cannot be squared with Section 1231(a)(6)’s express 
authorization for the Attorney General to detain an alien 

7 

“who has been determined by the Attorney General to be a 
risk to the community or unlikely to comply with the order of 
removal.” 

3. Respondent contends (Br. in Opp. 13, 21-22) that this 
Court’s review of the statutory question should await the 
INS’s adoption of its final regulations further formalizing the 
administrative process for periodic review of decisions to 
detain aliens such as respondent under Section 1231(a)(6). 
Respondent suggests (Br. in Opp. 13) that “the INS may 
remedy any present conflict on its own,” and asserts (id. at 
21 & n.21) that the final regulations adopted by the INS may 
be consistent with the Ninth Circuit’s ruling. That sugges- 
tion is without merit. 

The very premise of the proposed regulations is that the 
Attorney General does have the authority, as both a statu- 
tory and a constitutional matter, to detain aliens like respon- 
dent, who cannot be returned to their country of nationality 
for the time being, but who are aggravated felons or aliens 
found by the Attorney General to pose a risk of flight or 
danger to the community if released. 65 Fed. Reg. 40,540 
(June 30, 2000). The proposed regulations are designed to 
clarify and codify the procedures for deciding how to 
exercise that authority. Any delay in resolving questions 
concerning the scope of the Attorney General’s authority 
under Section 1231(a)(6) will undermine the validity of the 
INS’s regulations, which are designed to ensure the even- 
handed exercise of that authority nationwide. Indeed, if the 
Ninth Circuit’s ruling remains binding precedent, courts will 
require the Attorney General to release all aliens in respon- 
dent’s position in that circuit, without the exercise of 
the individualized judgment and discretion that Section 
1231(a)(6) expressly contemplates and that her proposed 
regulations are designed to implement. 

4. Respondent argues (Br. in Opp. 23-25) that further 
review of this case is not warranted because continued deten- 
tion of criminal aliens such as respondent is not necessary. 

8 

Respondent asserts that the INS is “still able to supervise” 
aliens after they are released and is able to “compel their 
appearances.” Id. at 23. But supervision conditions can be 
violated, as they were by respondent when he assaulted a 
female companion, thus posing a danger to the community. 
That is why the INS’s custody determination takes into 
account, among other things, the alien’s probation history 
and evidence of any rehabilitative effort or recidivism. See 8 
C.F.R. 241.4(a); Pet. App. 78a. Similarly, every year many 
criminals and aliens fail to respond to notices to appear for 
various legal proceedings. That is why the INS’s custody 
determination takes into account any history of failures to 
appear. 8 C.F.R. 241.4(a); Pet. App. 78a. In any event, 
respondent simply ignores the fact that Congress explicitly 
provided that an alien’s “risk to the community” and 
likelihood of “comply[ing] with the order of removal” are 
factors the Attorney General may take into account in 
making detention decisions under Section 1231(a)(6). 

Respondent’s fact-bound attempts (Br. in Opp. 4 n.2; 7 & 
nn.8, 9; 8 n.10; 10 n.12; 21 n.21; 24-25 & nn.25, 26) to convince 
the Court that the INS’s continued detention of him was not 
necessary because he did not pose a danger to the commu- 
nity and would abide by release conditions ignore both the 
record in this case and the fact that, under the court of 
appeals’ ruling, the INS is prohibited from detaining respon- 
dent and all other aliens comparably situated whether or not 
they pose a serious danger to the community or would 
comply with release conditions.4 

4 The letter informing respondent of the INS’s decision to continue 
him in detention specifically noted that, in making that decision, the assis- 
tant district director considered numerous factors, including respondent’s 
criminal convictions, “[o]ther criminal history,” “[e]vidence of rehabilita- 
tive effort or recidivism,” and “[p]rior immigration violations and history.” 
Pet. App. 78a. As we have explained (Pet. 6 n.2), respondent’s immigra- 
tion file revealed that he had been associated with a gang “for some time” 
and had been arrested on two other occasions with one of the codefendants 
in his manslaughter case (see A.R. 50), contrary to respondent’s assertion 

9 

5. As we demonstrate in the certiorari petition (at 17-23), 
the court of appeals’ construction of Section 1231(a)(6) is fa- 
tally flawed. The court rewrites an unambiguous 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 final 
orders of removal. 

The court of appeals’ interpretation of Section 1231(a)(6) 
to allow detention beyond the 90-day period only for a 
“reasonable” time, Pet. App. 25a, finds no support in the text 
of the statute. To the contrary, the statute’s text, structure, 
and history reveal that Congress intended that the Attorney 
General be authorized to detain aggravated felons and aliens 
who she found to pose a risk to the community or a likelihood 
of noncompliance with the removal order. Pet. 17-23. 

In defending the Ninth Circuit’s addition of a judicially 
fashioned “reasonable” time limitation to Section 1231 (a)(6), 
respondent relies (Br. in Opp. 27-28, 30) on lower-court deci- 
sions rendered approximately 70 years ago under statutory 
provisions repealed in 1952. Those long-since superseded 
statutory provisions and decisions have no bearing on the 
present question. 

As we explain in the certiorari petition (at 18-22), since at 
least 1990, Congress has unequivocally exempted the deten- 

(Br. in Opp. 7 n.8) that his history of gang activities “consists solely of the 
manslaughter offense for which he was convicted.” The record also 
revealed that the immigration judge who had refused respondent’s 
request for release while his removal proceedings were pending had found 
that respondent posed a danger if released because of the lack of any 
evidence that he had been rehabilitated during his state imprisonment 
term and because he had denied his involvement in gang activity, denied 
knowledge of the killing, and denied abusing drugs, despite information to 
the contrary. See Pet. 6. Finally, respondent’s post-release arrest on 
charges of assaulting a female companion reflects his continued 
involvement in violent conduct that the State is attempting to prosecute 
through its appeal of the dismissal of those charges. See Pet. 13 n.6; Br. in 
Opp. 10 n.12. 

10 

tion of aggravated felons following entry of a final order of 
deportation from any statutory time limit that applied 
generally to other aliens. Indeed, Congress has consistently 
allowed, and at times mandated, that the Attorney General 
continue to detain aggravated felons. Nothing in the last 
decade of amendments to the Immigration and Nationality 
Act suggests that Congress intended that after 1996, instead 
of having six months to effectuate removal with varying 
degrees of authority to detain criminal aliens thereafter, as 
under prior law, the Attorney General would now be subject 
to a judicially imposed limitation of only a “reasonable” time 
beyond 90 days, which in this case was deemed no time at all. 

To the extent respondent identifies any ambiguity in the 
statute (see Br. in Opp. 26), however, that is no basis for 
adoption of the court of appeals’ interpretation. Rather, it is 
the INS’s plainly reasonable interpretation of Section 1231 
(a)(6) that is entitled to judicial deference under Chevron 
U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), and INS v. 
Aguirre-Aguirre, 526 U.S. 415, 425 (1999). See Pet. 18. 

* * * * * 

For the foregoing reasons and those stated in the petition, 
the petition for a writ of certiorari should be granted and the 
case should be consolidated for oral argument with 
Zadvydas v. Underdown, No. 99-7791, in which we are today 
filing a supplemental brief suggesting that the Court grant 
certiorari in that case as well. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

SEPTEMBER 2000