No. 99-7791 

In the Supreme Court of the United States 

KESTUTIS ZADVYDAS, PETITIONER 

v. 

LYNNE UNDERDOWN AND IMMIGRATION 
AND NATURALIZATION SERVICE 

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

BRIEF FOR THE RESPONDENTS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

DONALD KEENER 
QUYNH VU 

Attorneys 

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

QUESTION PRESENTED 

Whether the Immigration and Naturalization Service’s 
continued detention of an alien who is subject to a final order 
of deportation, but whose removal cannot be effectuated 
immediately, violates substantive due process, where the 
alien’s custody is reviewed automatically by the Immigration 
and Naturalization Service on a periodic basis to determine 
whether he would present a danger to society or a flight risk 
if released. 

(I) 

TABLE OF CONTENTS 

Page 

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

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

Constitutional, statutory and regulatory provisions 

involved ................................................................................... 2 

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

Summary of argument .................................................................. 
16 

Argument: 

The continued detention of an alien under a final 

order of deportation whose removal has not yet been 

effectuated comports with due process, where the 

detention is subject to periodic review to determine 

whether the alien would present a risk to the 

community or of flight if released ...................................... 

19 

A. The Attorney General’s decision to detain 

an alien under a final deportation order, pur- 
suant to authority granted by Congress, must 

be accorded substantial deference under the 

Constitution ................................................................... 19 

B. Detention of an alien who has been determined 

to pose a risk to the community or be unlikely 

to comply with a final deportation order if 

released furthers important governmental 

interests and comports with due process ................. 
24 

1. Congress has concluded that detention of 

a criminal alien under a final deportation 

order is justified in these circumstances ........... 

24 

2. Congress’s authorization to detain dang- 
erous aliens under final orders of removal 

is consistent with this Court’s due process 

precedents ............................................................... 29 

(III) 

IV 

Table of Contents—Continued: 

Page 

3. Petitioner’s prior long-time residency in 

this country does not render his detention 

unconstitutional, because his right to remain 

here has been terminated .................................... 

34 

C. Detention of aliens such as petitioner under 

Section 1231(a)(6) is not unconstitutionally 

indefinite or excessive .................................................. 

40 

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

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

Appendix B ..................................................................................... 
7a 

Appendix C ..................................................................................... 
9a 

Appendix D ..................................................................................... 
27a 

Appendix E ..................................................................................... 
32a 

TABLE OF AUTHORITIES 

Cases: 

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

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

13, 22, 49 

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

17, 22, 23, 

24, 31, 33, 34 
Fiallo v. Bell, 430 U.S. 787 (1977) ...................................... 

20 

Gisbert v. United States Attorney General, 988 F.2d 

1437, amended by, 997 F.2d 1122 (5th Cir. 1993) ......... 

13, 22 

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

17, 

20, 30, 34 

Ho v. Greene, 204 F.2d 1122 (5th Cir. 1993) ............ 
35, 36, 41 

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

22, 24, 

49, 50 

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff ’d, 
472 U.S. 846 (1985) ...................................................... 

34, 49, 50 

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

17-18, 

31, 32, 33, 44 
Landon v. Plasencia, 459 U.S. 21 (1982) ....................... 36, 38 

V 

Cases—Continued: Page 

Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 

1987) ......................................................................................... 34 

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

39 

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

35 

Mrvica v. Esperdy, 376 U.S. 560 (1964) ............................. 

6 

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

as amended on Dec. 30, 1999 ............................................ 

41, 48 

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

(1889) ...................................................................................... 19-20 

Plyler v. Doe, 457 U.S. 202 (1982) ................................... 

35, 39 

Reno v. American-Arab Anti-Discrimination 

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

9 

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

17, 22, 23, 38 

Shaughnessy v. United States ex rel. Mezei, 

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

13, 17, 20, 21, 22, 29, 30, 35, 49 

Fong Yue Ting v. United States, 149 U.S. 698 

(1893) ............................................................... 

14, 20, 38, 39, 47 

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

10, 18, 

22, 24, 32, 33, 47 

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

14, 20, 33, 39 

Yick Wo. v. Hopkins, 118 U.S. 356 (1886) ......................... 

39 

Constitution, statutes and regulations: 

U.S. Const.: 

Amend. V ................................................................... 

2, 18, 30, 34 

Due Process Clause ................................................ 

18, 34, 35 

Amend. VIII ..................................................................... 

8, 9, 33 

Amend. XIV ....................................................................... 

34, 35 

Equal Protection Clause .................................................. 

35 

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

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

24 

Antiterrorism and Effective Death Penalty Act of 

1996, Pub. L. No. 104-132, 110 Stat. 1214: 

§ 440, 110 Stat. 1276 ........................................................ 

9, 27 

§ 440(c), 110 Stat. 1277 ...................................... 9, 11, 25, 42 

VI 

Statutes and regulations—Continued: 
Page 

Illegal Immigration Reform and Immigrant Respon- 
sibility Act of 1996, Pub. L. No. 104-208, Div. C, 

110 Stat. 3009-546 .................................................................. 

9 

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

16, 26 

§ 303, 110 Stat. 3009-585 to 3009-587 ............................. 

26 

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

27 

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

28 

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

26 

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

27 

§ 387, 110 Stat. 3009-655 .................................................. 

29 

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

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

25 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq. ........................................................................................ 
24 

8 U.S.C. 1101(a)(20) (1994) ............................................ 
35 

8 U.S.C. 1101(a)(47)(B)(ii) (Supp. V 1999) ................. 
35 

8 U.S.C. 1182 (1994) ....................................................... 
26 

8 U.S.C. 1182 (Supp. V 1999) ........................................ 
26 

8 U.S.C. 1182(c) (1976) ................................................... 
3 

8 Ù.S.C. 1182(c) (Supp. V 1993) ................................... 
5 

8 U.S.C. 1182(c) (1994) ................................................... 
6, 7 

8 U.S.C. 1225 (Supp. V 1999) ........................................ 
26 

8 U.S.C. 1226(c) (Supp. V 1999) ............................... 
28, 2a 

8 U.S.C. 1227 (1994) ....................................................... 
26 

8 U.S.C. 1229a (Supp. V 1999) ..................................... 
26 

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

8 U.S.C. 1231(a)(1) (Supp. V 1999) .............................. 
28 

8 U.S.C. 1231(a)(4)(A) (Supp. V 1999) ........................ 
46 

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

8 U.S.C. 1251 (1994) ....................................................... 
26 

8 U.S.C. 1251(a)(2)(A)(ii) (Supp. V 1993) ................... 
4 

8 U.S.C. 1251(a)(2)(A)(iii) (Supp. V 1993) .................. 
4 

8 U.S.C. 1251(a)(2)(B)(i) (Supp. V 1993) .................... 
4 

8 U.S.C. 1251(a)(4) (1976) .............................................. 
3 

8 U.S.C. 1252 (1994) ....................................................... 
26 

8 U.S.C. 1252(a)(2) (1988) .............................................. 24 

VII 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1252(a)(2) (Supp. V 1993) .............................. 
4 

8 U.S.C. 1252(a)(2) (Supp. III 1997) ............................ 
25 

8 U.S.C. 1252(a)(2) (Supp. V 1999) .............................. 
42 

8 U.S.C. 1252(a)(2)(A) (1988 & Supp. II 1990) .......... 
25 

8 U.S.C. 1252(a)(2)(A) (1994) ...................................... 
8, 10 

8 U.S.C. 1252(a)(2)(B) (1988 & Supp. II 1990) .......... 
25 

8 U.S.C. 1252(a)(2)(B) (Supp. III 1991) ...................... 
25 

8 U.S.C. 1252(a)(2)(B) (Supp. V 1993) ........................ 
4 

8 U.S.C. 1252(a)(2)(B) (1994) ................................ 
8, 10, 25 

8 U.S.C. 1252(g) (Supp. III 1997) ................................ 
9 

8 U.S.C. 1252(g) (Supp. V 1999) ................................... 
10 

8 U.S.C. 1259 (1988 & Supp. V 1993) .......................... 
6 

8 U.S.C. 1368 (Supp. V 1999) ........................................ 
29 

Miscellaneous and Technical Immigration and 

Naturalization Amendments of 1991, Pub. L. 
No. 102-232, Tit. III, § 306(a)(4), 105 Stat. 1751 ............... 

25 
28 U.S.C. 2241 ............................................................................ 
8 

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

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

35 

Pt. 212: 

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

43 

Section 212.12(a) ............................................................ 
43-44 

Pt. 236: 

Section 236.1(d) ................................................................. 

12 

Section 236.1(d)(2)(ii) ........................................................ 
43 

Section 236.1(d)(3)(iii) ....................................................... 
43 

Pt. 241: 

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

2, 12, 40, 42, 43, 7a 

Section 241.4(a) .............................................................. 
43, 7a 

Section 241.5 .................................................................. 
12, 43 

Miscellaneous: 

142 Cong. Rec. 7972 (1995) ...................................................... 

27 

Dep’t of Justice, Office of the Inspector General, 

Deportation of Aliens After Final Orders Have 
Been Issued (Mar. 1996) ....................................................... 28 

VIII 

Miscellaneous—Continued: Page 

62 Fed. Reg. (1997): 

p. 10,312 ..................................................................... 

28, 40, 42 

p. 10,323 ............................................................................... 28 

p. 48,183 ............................................................................... 28 

65 Fed. Reg. (2000): 

p. 40,540 ............................................................................... 44 

p. 80,281 ............................................................................... 41 

pp. 80,281-80,298 .............................................................. 

44, 9a 

p. 80,285 ............................................................................... 41 

p. 80,288 ............................................................................... 45 

p. 80,291 ............................................................................... 44 

p. 80,295 ............................................................................... 46 

pp. 80,295-80,296 .................................................................. 44 

p. 80,296 ............................................................................... 44 

p. 80,297 ........................................................................... 44, 45 

General Accounting Office, Criminal Aliens: INS’ 
Efforts to Identify and Remove Imprisoned Aliens 
Need to be Improved (July 1997) ......................................... 

27 

S. Rep. No. 48, 104th Cong., 1st Sess. (1995) ....................... 28 

In the Supreme Court of the United States 

No. 99-7791 

KESTUTIS ZADVYDAS, PETITIONER 

v. 

LYNNE UNDERDOWN AND IMMIGRATION 
AND NATURALIZATION SERVICE 

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

BRIEF FOR THE RESPONDENTS 

OPINIONS BELOW 

The opinion of the court of appeals (J.A. 192-228) is re- 
ported at 185 F.3d. 279. The opinion of the district court 
(J.A. 111-147) is reported at 986 F. Supp. 1011. The report 
and recommendation of the magistrate judge (J.A. 70-93) are 
unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
August 11, 1999. A petition for rehearing was denied on 
October 13, 1999 (J.A. 229). The petition for a writ of certio- 
rari was filed on January 11, 2000, and was granted on 
October 10, 2000. The jurisdiction of this Court rests on 28 
U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL, STATUTORY 
AND REGULATORY PROVISIONS INVOLVED 

1. The Fifth Amendment to the United States 
Constitution provides in relevant part: 

No person shall be * * * deprived of life, liberty, or 
property, without due process of law. 

2. Section 1231(a) of Title 8 of the United States Code is 
set forth in relevant part at App., infra, 4a-6a. 

3. The regulations of the Immigration and Naturalization 
Service (INS) that governed the detention of aliens beyond 
the 90-day removal period prior to December 21, 2000 (8 
C.F.R. 241.4) are set forth at App., infra, 7a-8a. The 
regulations of the INS that govern such detention as of 
December 21, 2000, are set forth at App., infra, 9a-26a. 

4. The February 3, 1999, memorandum from the Ex- 
ecutive Associate Commissioner of the Immigration and 
Naturalization Service (INS) to INS Regional Directors, 
entitled “Detention Procedures for Aliens Whose Immediate 
Repatriation Is Not Possible or Practicable,” is set forth at 
App., infra, 27a-31a. 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, 32a-39a. 

STATEMENT 

1. a. 

Petitioner was born in a displaced persons camp in 

Germany in 1948. His parents were both from Lithuania. In 
1956, petitioner immigrated with his family to the United 
States and became a resident alien. Despite his long 
residence in the United States, petitioner never became a 
citizen of this country. J.A. 193, 212-213. 

On December 8, 1966, petitioner was convicted of 
attempted robbery, third degree, in New York state court. 
J.A. 112. Petitioner was sentenced to six years’ imprison- 

3 

ment and served five years of that sentence. J.A. 13. On 
August 31, 1973, petitioner was arrested on auto theft 
charges and ultimately was convicted on the basis of a guilty 
plea. J.A. 13. In 1974, petitioner was convicted on charges of 
attempted burglary, third degree, in New York state court. 
J.A. 112. He was sentenced to one and one half to three 
years’ imprisonment. J.A. 13. Petitioner “admitted that he 
had failed to appear three times on the burglary charge in 
the 1970’s.” J.A. 7. During his eventual imprisonment on 
the burglary charge, petitioner was punished for escape 
based on his violation of the terms of a furlough or work re- 
lease program by returning several days late. J.A. 13.1 

b. On July 6, 1977, the Immigration and Naturalization 
Service (INS) issued petitioner an order to show cause why 
he should not be deported. J.A. 112. The INS charged 
petitioner with being deportable under 8 U.S.C. 1251(a)(4) 
(1976), as an alien who had been convicted of two crimes 
involving moral turpitude. J.A. 71 & n.1. Petitioner applied 
for discretionary relief from deportation under 8 U.S.C. 
1182(c) (1976). J.A. 71-72. 

On July 13, 1977, the INS granted petitioner release on his 
own recognizance pending disposition of his deportation 
charges. J.A. 71. According to the conditions of his release, 
petitioner was required to obtain the INS’s permission 
before changing his place of residence, to report any change 
of address or employment, and to report to the INS office in 
New York on August 31, 1977. J.A. 14-15. 

The immigration judge (IJ) before whom the deportation 
charges were pending subsequently remanded petitioner’s 
case to the INS for adjudication of his application for relief 
under 8 U.S.C. 1182(c) (1976). J.A. 15. That application was 
ultimately denied by the INS on February 10, 1982. J.A. 15. 
In July 1982, the INS notified petitioner that his deportation 

1 Petitioner’s early criminal history also reflects a juvenile record and 
a charge of car theft in 1964. J.A. 7. 

4 

hearing was rescheduled for August 25, 1982. J.A. 112. 
“Facing a hearing before an immigration judge that year, 
[petitioner] disappeared,” J.A. 193, and failed to appear for 
his deportation hearing, J.A. 112. 

c. The INS’s attempts to locate petitioner were unsuc- 
cessful. He was not heard from again until he was arrested 
ten years later, in 1992, in Texas, on drug charges for which 
he had been initially arrested in Virginia in 1987. J.A. 112. 
“While on bail awaiting trial in Virginia, [petitioner had] fled 
to Houston, Texas,” to avoid the drug charges. J.A. 14, 193. 
Petitioner “was in hiding from 1987 until he surrendered 
himself to the [Texas] authorities in 1992.” J.A. 7. 

On August 17, 1992, petitioner was convicted in Virginia 
state court of possession of 474 grams of cocaine with intent 
to distribute it. J.A. 112, 193. He was sentenced to sixteen 
years’ imprisonment, with six years of that sentence 
suspended. Petitioner served two years’ imprisonment on 
that sentence and was then released on parole in January 
1994 to the custody of the INS. J.A. 113, 193-194. 

2. a. On January 24, 1994, the INS issued petitioner a 
superseding order to show cause, charging him with being 
deportable under 8 U.S.C. 1251(a)(2)(A)(ii) (Supp. V 1993), as 
an alien convicted of two crimes involving moral turpitude; 
under 8 U.S.C. 1251(a)(2)(B)(i) (Supp. V 1993), as an alien 
convicted of a controlled substance offense; and under 8 
U.S.C. 1251(a)(2)(A)(iii) (Supp. V 1993), as an alien convicted 
of an aggravated felony. J.A. 25, 72. 

The INS detained petitioner under 8 U.S.C. 1252(a)(2) 
(Supp. V 1993) pending completion of the deportation pro- 
ceedings. J.A. 5. Petitioner requested redetermination of 
his custody status, and a bond hearing was held by an IJ on 
February 28, 1994. J.A. 5. The IJ declined to order that 
petitioner be released. J.A. 5-8. The IJ noted that, in order 
to obtain release under 8 U.S.C. 1252(a)(2)(B) (Supp. V 1993) 
during the pendency of deportation proceedings, petitioner 
bore the burden of establishing that he was lawfully ad- 

5 

mitted, not a threat to the community, and likely to appear 
at any scheduled hearings. J.A. 6. The IJ found it unneces- 
sary to decide whether petitioner would pose a threat to the 
community if released because petitioner’s five-year flight 
from prosecution and other information brought out on 
cross-examination, including an arrest by the FBI for flight 
to avoid prosecution, “cast[] serious doubt on [petitioner’s] 
likelihood to appear at future hearings.” J.A. 8. On April 8, 
1994, the Board of Immigration Appeals dismissed peti- 
tioner’s appeal from that decision. J.A. 9. 

b. Meanwhile, petitioner’s deportation proceedings con- 
tinued on the merits. At a hearing before an IJ on March 29, 
1994, petitioner admitted all of the allegations in the order to 
show cause and was found deportable as charged. J.A. 87-88. 
Petitioner then applied for relief from deportation under 8 
U.S.C. 1182(c) (Supp. V 1993). After a hearing on that 
application, the IJ issued a decision on May 2, 1994, denying 
petitioner relief from deportation. J.A. 10-20. 

The IJ first recognized as a favorable factor petitioner’s 
“family ties in the United States in the form of his mother, 
five siblings, a wife, and a daughter,” although the IJ noted 
that no family members had testified or provided affidavits 
in support of petitioner, thus leading the IJ to question the 
strength of petitioner’s relationship with his family. J.A. 18. 
The IJ also noted that separating petitioner from his 
daughter “would not be a unique situation for her” in light of 
their previous separation due to petitioner’s criminal 
offenses and incarceration. J.A. 18. The IJ identified as 
additional favorable factors petitioner’s residency in this 
country for over 37 years and the fact that deportation to his 
native country of Germany would cause petitioner hardship 
because he does not have family ties to Germany and does 
not speak the language. J.A. 18-19. 

The IJ determined, however, that petitioner’s favorable 
equities were outweighed by “extremely serious negative 
factors such as [petitioner’s] criminal history which extends 

6 

over a period of almost 28 years and includes burglaries, 
thefts, and armed robberies, his abuse of drugs, his 
distribution of drugs, his flights to avoid prosecution and 
prison, and his questionable rehabilitation,” J.A. 20, the 
latter as evidenced by his minimization of his participation in 
the drug-trafficking scheme, J.A. 19. Indeed, the IJ 
observed, “[f]or most of the last 27 years, [petitioner] has 
been either engaged in criminal activity, in prison, or a 
fugitive.” J.A. 18. He “absconded during the pendency of 
deportation proceedings,” “abused the privilege of a super- 
vised release from prison in 1976, fled to avoid prosecution in 
1987, and was a fugitive from justice from 1987 until 1992.” 
J.A. 19. The IJ therefore concluded that a favorable exercise 
of discretion was not warranted in this case. J.A. 20.2 

At the time of the deportation hearing, it was believed 
that petitioner was a citizen of Germany. J.A. 10; see also 
Sept. 27, 1996 Tr. 42 (petitioner testified that he thought that 
he was a German citizen until he and the INS learned 
otherwise). The IJ therefore ordered that petitioner be 
deported to Germany. J.A. 20. Petitioner did not appeal 
that decision, and it thereby became a final order of 
deportation. J.A. 194.3 

2 Because petitioner entered the United States before 1972, the IJ also 
considered whether petitioner qualified for registry under 8 U.S.C. 1259 
(1988 & Supp. V 1993). 

Under that statutory provision, the Attorney 

General may provide, in her discretion, a “record of lawful admission for 
permanent residence,” known as “registry” (see Mrvica v. Esperdy, 376 
U.S. 560 (1964)), to an alien who entered the United States prior to 1972 if 
the alien meets certain statutory criteria, including that he has resided in 
the United States continuously since entry, is a person of good moral 
character, is not ineligible for citizenship, and is not inadmissible on 
certain grounds. The IJ determined that petitioner could not meet the 
statutory requirement of good moral character under the registry 
provision because of his conviction of an aggravated felony. J.A. 11-12. 

3 On January 9, 1995, petitioner filed a motion to reopen his 
deportation proceedings to apply once again for relief under Section 
1182(c). J.A. 26. On January 19, 1995, an IJ denied the motion because it 

7 

3. In May 1994, an INS official began the process for 
obtaining travel documents from Germany so that the INS 
could effectuate petitioner’s deportation. J.A. 113. After the 
INS submitted the necessary application to the German 
Consulate, the Consulate informed the INS on June 28, 1994, 
that it had determined that petitioner’s parents were 
Lithuanian and that petitioner is not a German citizen. J.A. 
74, 113.4 
On July 26, 1994, the INS sent a formal written request to 
the Lithuanian Consulate for a travel document for peti- 
tioner based on his Lithuanian parentage. J.A. 74. The 
Lithuanian Consulate responded on August 22, 1994, stating 
that it declined to issue petitioner a travel document on the 
ground that he is not a citizen or permanent resident of 
Lithuania. J.A. 23, 74, 194. On October 3, 1994, INS Head- 
quarters formally requested permission from Lithuania for 
the return of petitioner to that country. J.A. 74. 

In October 1996, the INS again contacted the Lithuanian 
Consulate to determine whether petitioner could claim 
Lithuanian citizenship. J.A. 195. The INS was informed that 
petitioner could apply for citizenship if he could prove that 
his parents were born in Lithuania before 1940. J.A. 195, 
215-216. On April 23, 1997, the INS forwarded another 
formal request for travel documents to the Consulate of 
Lithuania. J.A. 96-98. The letter requested information 
about how a child born of Lithuanian parents in a country 
other than Lithuania acquires Lithuanian citizenship. J.A. 

97. It also enclosed documents reflecting the baptism of peti- 

was not accompanied by an application for relief under Section 1182(c), 
and because petitioner could not make a prima facie showing of eligibility 
for that relief. J.A. 26-27. 

4 The INS continued its efforts to obtain travel documents for 
petitioner from Germany. The German Consulate obtained further 
information, but ultimately again denied the request in May 1995, stating 
that it had conducted extensive research and determined that petitioner is 
not a German citizen. J.A. 75, 194-195. 

8 

tioner’s mother and the marriage of petitioner’s parents 
in Lithuania. Ibid.; see also J.A. 106-107 (letter enclosing 
clearer copies of same documents and an additional docu- 
ment relating to petitioner’s father). The Lithuanian 
government provided additional information about the type 
of documentation required following a meeting in September 
1998. J.A. 164-165. See also note 22, infra.5 

4. In the meantime, in September 1995, petitioner had 
commenced the instant action by filing a petition for a writ of 
habeas corpus under 28 U.S.C. 2241, contending that his 
continued detention violated the Eighth Amendment, due 
process, and international law. J.A. 195. 

a. The matter was referred to a magistrate judge, who 
conducted an evidentiary hearing on September 27, 1996. 
J.A. 70. On February 3, 1997, the magistrate judge issued a 
report recommending that the petition be denied. J.A. 70-93. 
The magistrate judge found that petitioner’s continued 
detention under 8 U.S.C. 1252(a)(2)(A) and (B) (1994) was 
“statutorily authorized and does not constitute an abuse of 
the Attorney General’s broad discretion in immigration 
matters.” J.A. 76-77. The magistrate judge also concluded 
that petitioner’s detention did not violate substantive due 
process because the purpose of his detention was not 
punishment, but rather was to further the government’s 
compelling interest in protecting the community and its 
legitimate interest in preventing aliens from absconding 
before they are deported, and because petitioner’s continued 
detention was not an excessive means of accomplishing those 
purposes. J.A. 79-82. The magistrate judge rejected peti- 
tioner’s contention that because he had been a resident alien, 
he was entitled to greater protections than the excludable 
aliens who had been involved in earlier cases upholding the 

5 In addition, the INS submitted an unsuccessful request for travel 
documents to the Consulate of the Dominican Republic because 
petitioner’s wife is a native of that country. J.A. 64-65, 195. 

9 

constitutionality of continued detention. J.A. 82-83. The 
magistrate judge reasoned that whether detention is puni- 
tive turns not on the distinction between resident and 
excludable aliens, but rather on the governmental purpose 
underlying the detention. The magistrate judge concluded 
that the governmental objectives in protecting society and 
preventing “bond jumping” justify the detention of aliens 
who at one time had the status of permanent residents. J.A. 

83. The magistrate judge also concluded that petitioner was 
not being arbitrarily imprisoned for an indefinite time in 
violation of international law or the Eighth Amendment 
because the INS’s efforts to effectuate his deportation were 
ongoing. J.A. 90-92.6 

b. On October 30, 1997, the district court issued an order 
disagreeing with the magistrate judge’s recommendation 
and granting petitioner habeas relief, based on the court’s 
conclusion that petitioner’s continued detention violated 
substantive due process. J.A. 111-147.7 

6 The magistrate judge found it unnecessary to determine whether 
Section 440 of the Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1276—subsection (c) of which 
mandated the detention of aliens who are aggravated felons—should be 
applied retroactively to petitioner’s case, because the court had already 
determined that he was not entitled to relief under the more lenient pre- 
AEDPA law. J.A. 92; see also J.A. 91 n.8 (indicating that the transition 
period custody rules of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 
Stat. 3009-546 (discussed at note 12, infra), allowed petitioner to apply for 
release on bond, but that the INS had determined that petitioner would 
not be eligible under those rules). 

7 As an initial matter, the court held that it had jurisdiction over the 
habeas corpus petition notwithstanding 8 U.S.C. 1252(g) (Supp. III 1997), 
as amended by IIRIRA. J.A. 115-124. The INS did not contest the district 
court’s jurisdiction on appeal, and the court of appeals held that, under the 
then-recent decision in Reno v. American-Arab Anti-Discrimination 
Committee, 525 U.S. 471 (1999), judicial review of petitioner’s detention is 
not precluded by Section 1252(g). J.A. 198-199. We agree with the court 

10 

The district court framed petitioner’s substantive due 
process claim as presenting the question “whether a legal 
alien who is under a final order of deportation may be 
permanently incarcerated because the INS cannot find a 
country to take him.” J.A. 136. The court held that such 
detention is unconstitutional. The court recognized (J.A. 136- 
140) that petitioner’s detention was consistent with the 
INS’s statutory authority under 8 U.S.C. 1252(a)(2)(A) and 
(B) (1994), because, “[c]onsidering petitioner’s recidivist 
history and his prior episode of ‘bond jumping,’ petitioner 
has not met his burden of proving that he is not a threat to 
the community and that he is likely to appear for scheduled 
hearings.” J.A. 139. The court also noted that Congress 
nowhere placed a time limit on the detention of aggravated 
felons, such as petitioner, who cannot meet the statutory 
standards for release and whose immediate deportation is 
not possible. J.A. 139-140. And the court recognized that 
detention of aliens such as petitioner furthers the govern- 
ment’s legitimate interests in protecting the community 
from aggravated felons and preventing aliens from abscond- 
ing before they are deported, and that those interests “can 
warrant a deprivation of liberty under the proper circum- 
stances.” J.A. 143 (quoting United States v. Salerno, 481 
U.S. 739 (1987)). The court held, however, that petitioner’s 
detention was an excessive means of accomplishing those 
purposes because of its duration up to that time and what 
the court believed to be “its potential, if not certainty, for 
indefinite duration in the future,” in light of the INS’s lack of 
success in obtaining travel documents from Lithuania. J.A. 

of appeals that Section 1252(g) does not bar a district court from 
exercising habeas corpus jurisdiction to consider an alien’s challenge to his 
continued custody following entry of a final order of deportation. 

The district court also rejected petitioner’s procedural due process 
claims that challenged various aspects of his deportation hearing. J.A. 
126-136. Petitioner did not cross-appeal from those rulings. J.A. 196 n.3. 

11 

143. The court therefore ordered that petitioner be released 
from the INS’s custody on conditions to be set by the court 
after a hearing. J.A. 146-147, 197.8 

5. The court of appeals reversed. J.A. 192-228. The 
court reviewed the four statutory regimes that have gov- 
erned immigration detention since petitioner’s placement in 
INS custody in 1994, in order to determine which regime 
would currently govern petitioner’s detention. The court 
noted that, “[t]wo of them, the rule in place when [petitioner] 
was initially detained, see 8 U.S.C. § 1252 (1994), and the 
Transition Period Custody Rules authorized in IIRIRA (see 
note 12, infra), place the burden on a detainee awaiting 
deportation to prove that he is not a danger to the com- 
munity or a flight risk before being released on parole pend- 
ing deportation.” J.A. 199-200. The court noted that under a 
third regime, enacted in Section 440(c) of AEDPA (see note 
6, supra), petitioner’s detention would be mandatory regard- 
less of the danger or flight risk he posed. J.A. 200. Finally, 
with regard to the fourth statutory regime, i.e., the per- 
manent provisions of IIRIRA, the court recognized that 8 
U.S.C. 1231(a)(6) (Supp. V 1999) “authorizes detention but 
makes it discretionary beyond an initial ninety day period.” 
J.A. 200 & n.6. The court agreed with the INS that peti- 
tioner’s detention is governed by Section 1231(a)(6) (J.A. 
200-202), emphasizing that “the rapid passage of IIRIRA in 
the immediate wake of AEDPA seems to indicate that 
Congress repudiated the harsh mandatory detention regime 
created by AEDPA for aliens whose deportation is final.” 
J.A. 200-201. The court specifically found that petitioner is 
subject to detention under Section 1231(a)(6) based on his 
conviction of an aggravated felony and his conviction of a 
controlled substance violation. J.A. 202 n.8. 

8 The district court denied the government’s motion to alter or amend 
the judgment on December 19, 1997, J.A. 150, and petitioner was released 
by the INS pursuant to the court’s judgment in late 1997, J.A. 176. 

12 

Turning to the question of the constitutionality of peti- 
tioner’s continued detention under 8 U.S.C. 1231(a)(6) (Supp. 
V 1999), the court based its analysis on the assumption that 
an alien in petitioner’s position is entitled to obtain periodic 
review by the INS of his detention under INS regulations. 
J.A. 202. The court pointed to the regulations governing re- 
view of the custody status of aliens detained under Section 
1231(a)(6), which “authorize the release of such aliens when 
it is determined that the alien ‘is not a threat to the com- 
munity and is likely to comply with the removal order.’ ” 
J.A. 203 (citing 8 C.F.R. 236.1(d), 241.4, 241.5). The court 
further pointed out that those regulations have been “ex- 
plained and expounded in the February 3, 1999, ‘Memo- 
randum for Regional Directors from INS Executive 
Associate Commissioner Michael A. Pearson concerning 
‘Detention Procedures for Aliens Whose Immediate Repa- 
triation Is Not Possible or Practicable,’ ” J.A. 203. That 
memorandum required the INS to review the custody status 
of detained aliens every six months to determine whether 
there has been a change in circumstances that would support 
release, and to document the alien’s file to show reasons for 
detention decisions; and the governing regulations provided 
that if an alien requested a custody review in writing, he 
could appeal the district director’s decision to the Board of 
Immigration Appeals. J.A. 203 & n.9.9 

The court of appeals 
emphasized that “[t]he district court found that the INS did 
not err in determining that [petitioner] posed a danger to the 
community and a flight risk,” and that “[s]hould [petitioner] 
no longer do so, he would doubtless be released.” J.A. 204- 
205. 

9 See pp. 43-45, infra (discussing new regulation replacing this ad- 
ministrative regime with a review process that includes centralized 
review by INS Headquarters similar to that afforded under the Cuban 
Review Plan, rather than appeal to the Board of Immigration Appeals). 

13 

Against this background, the court of appeals held that 
the INS constitutionally may continue to detain an alien 
under a final order of deportation “based on either danger to 
the community or risk of flight while good faith efforts to 
effectuate the alien’s deportation continue and reasonable 
parole and periodic review procedures are in place.” J.A. 
227. In doing so, the court emphasized that the “power to 
expel or exclude aliens [is] a fundamental sovereign attri- 
bute exercised by the Government’s political departments 
largely immune from judicial control,” and that “[t]he power 
of the national government to act in the immigration sphere 
is thus essentially plenary.” J.A. 206, 207 (citations omitted). 

The court rejected petitioner’s claim that his detention 
constituted punishment without trial and violated a sub- 
stantive due process liberty interest. J.A. 208-209. The court 
explained that, in Gisbert v. United States Attorney General, 
988 F.2d 1437, 1448, amended by 997 F.2d 1122 (5th Cir. 
1993), it had held “that excludable aliens may be detained 
pending deportation without such detention constituting 
unconstitutional punishment, even when the aliens’ country 
of origin indicates it will not accept their return.” J.A. 209 
(also citing Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 
(9th Cir.) (en banc), cert. denied, 516 U.S. 976 (1995) (accord 
with Gisbert)). The court further explained that, drawing on 
the reasoning of Shaughnessy v. United States ex rel. Mezei, 
345 U.S. 206 (1953), it had found in Gisbert that “detention 
pending deportation does not constitute punishment, since 
the detention could rationally be seen as a necessary 
byproduct of the need to expel an unwanted alien rather 
than a punitive decision.” J.A. 210. 

The court of appeals rejected petitioner’s attempt to 
distinguish Gisbert and Mezei on the ground that, unlike the 
aliens involved in those cases, who were excludable because 
they were stopped at the border and not allowed to enter 
this country, petitioner “is a resident alien.” J.A. 211. The 
court acknowledged that petitioner’s prior status as a re- 

14 

sident alien had entitled him to greater procedural due pro- 
cess protections than an excludable alien would have had in 
the administrative proceedings to determine whether he 
would be entitled to remain in this country. J.A. 211. But it 
concluded that different treatment was no longer warranted 
“when, as here, a final decision to deport the once resident 
alien has been made and stands unchallenged.” J.A. 211; see 
also J.A. 220. The court opined that even excludable aliens 
are entitled to certain due process protections and that the 
lesser protection afforded them in proceedings to determine 
whether they may enter the country is not based on their 
excludable status as such, but rather is due to the fact that 
they are seeking the privilege of entry into this country. 
J.A. 220. 

After reviewing the case law governing the various con- 
stitutional protections accorded excludable and inadmissible 
aliens, the court of appeals concluded that “[n]othing in these 
cases suggests that a resident alien has a broadly privileged 
constitutional status relative to excludable aliens, or is con- 
stitutionally entitled to more favorable treatment when both 
the right asserted and the governmental interest are identi- 
cal to those in the parallel case of an excludable alien.” J.A. 
223. The court stressed that the constitutional rights of both 
excludable and deportable aliens may be affected by Con- 
gress’s power over immigration. J.A. 223 (citing Fong Yue 
Ting v. United States, 149 U.S. 698, 711 (1893) (United 
States’ power to terminate residence in this country of 
resident alien); Wong Wing v. United States, 163 U.S. 228, 
235 (1896) (discussing Congress’s power to expel aliens who 
are present in this country)). It follows, the court explained, 
that when the rights of such aliens come in conflict with the 
government’s sovereign interests, “their rights are con- 
strained accordingly and to the same extent.” J.A. 224. The 
court therefore concluded that “[i]n the circumstances pre- 
sented here, the national interest in effectuating deportation 
is identical regardless of whether the alien was once resident 

15 

or excludable.” J.A. 224. When a permanent resident alien 
becomes the subject of a final order of deportation, that alien 
is no longer a permanent resident, and “[t]he need to expel 
such an alien is identical, from a national sovereignty 
perspective, to the need to remove an excludable alien who 
has been finally and properly ordered returned to his 
country of origin.” J.A. 224. That the government cannot 
immediately effectuate the deportation of a criminal alien 
does not alter the analysis, the court reasoned, because, 
regardless of whether the criminal alien is a former resident 
or was excludable at the outset, the government has an 
interest in protecting society against the risk that he will 
commit more crimes if released or will not appear when 
actual deportation becomes feasible. J.A. 225-227. 

The court of appeals rejected the district court’s charac- 
terization of petitioner’s detention as “permanent confine- 
ment,” explaining that that characterization “considerably 
overstates the matter.” J.A. 211. The court pointed to the 
INS’s regulatory procedures, discussed earlier in its opinion, 
which provide for automatic, periodic administrative review 
of petitioner’s detention and allow for his release if the INS 
determines that he no longer poses a threat to the commun- 
ity or a flight risk. J.A. 211-212. 

Finally, the court of appeals rejected the district court’s 
conclusion that petitioner “will never be deported.” J.A. 212. 
The court noted that the circumstances surrounding peti- 
tioner’s deportation are complex and will doubtless require 
more time than usual, but that it had not been clearly 
established that there was no meaningful possibility of ever 
deporting him. J.A. 212. The court recounted the history of 
the area in modern-day Lithuania in which petitioner’s 
parents were born, J.A. 212-213, and acknowledged that 
petitioner “may in a sense be stateless,” but it concluded that 
that did not preclude petitioner from claiming or obtaining 
Lithuanian citizenship based on the birth of his parents in 
Lithuanian territory, J.A. 214-216. “Certainly,” the court 

16 

observed, “there has been no definitive denial by Lithuania 
of any application for citizenship by [petitioner].” J.A. 216. 
The court also noted two other possibilities that remained 
unexplored: a claim by petitioner of German citizenship 
based on ethnic German ancestry through his mother, and a 
claim of Russian citizenship because of the Soviet Union’s 
prior control over the birthplace of petitioner’s parents and 
the fact that some of petitioner’s relatives live there. J.A. 
217-219. The court concluded that, “[g]iven the traditional 
deference we show to the other branches in matters of immi- 
gration policy, judicial intrusion should not be considered, 
particularly where there are reasonable avenues for parole, 
until there is a more definitive showing that deportation is 
impossible, not merely problematical, difficult, and distant.” 
J.A. 219. 

SUMMARY OF ARGUMENT 

The continued detention of an alien by the Immigration 
and Naturalization Service (INS) under 8 U.S.C. 1231(a)(6) 
(Supp. V 1999) does not violate substantive due process 
where the alien is under a final order of deportation but has 
not yet been removed, and the alien’s detention is subject to 
periodic administrative review to determine whether he 
would present a risk to the community or of flight if 
released. Congress’s enactment of Section 1231(a)(6) and its 
predecessor statutes reflects Congress’s judgment that the 
government’s interests in preventing danger to the 
community and ensuring the appearance of aliens at future 
immigration proceedings justify the Attorney General’s 
continued detention of an alien whose release would present 
such risks. Section 1231(a)(6), as enacted by the Illegal 
Immigration Reform and Immigrant Responsibility Act of 
1996, Pub. L. No. 104-208, Div. C., 110 Stat. 3009-575, 
reflects Congress’s determination that, when faced with the 
difficult situation of an alien under a final order of deporta- 
tion who has no right whatsoever to be in this country but 

17 

who cannot be removed within the removal period, the 
Attorney General must be provided sufficient authority to 
determine how best to serve those interests and also to be 
able to release aliens where such release would not under- 
mine those interests. 

The Attorney General’s detention of an alien, pursuant to 
the statutory authority granted her by Congress, must be 
accorded substantial deference under the plenary power 
doctrine. This Court has recognized that “any policy toward 
aliens is vitally and intricately interwoven with contem- 
poraneous policies in regard to the conduct of foreign 
relations, the war power, and the maintenance of a 
republican form of government,” and that “[s]uch matters 
are so exclusively entrusted to the political branches of 
government as to be largely immune from judicial inquiry or 
interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 
588-589 (1952). Moreover, this Court has made clear that, 
when Congress vests in the Attorney General the dis- 
cretionary authority over detention decisions regarding 
aliens subject to deportation, such decisions are subject to 
only the most deferential standard of judicial review. See 
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 
(1953); Carlson v. Landon, 342 U.S. 524 (1952); Reno v. 
Flores, 507 U.S. 292 (1993). Petitioner’s claim to heightened 
due process scrutiny cannot be reconciled with those rulings. 

Congress’s grant of authority to the Attorney General to 
detain dangerous aliens such as petitioner is consistent with 
this Court’s substantive due process precedents. The Court 
upheld the Attorney General’s similar exercises of detention 
authority over aliens in Mezei and Carlson based on the 
threat of harm to the community that Congress determined 
would be posed by the release of such aliens. And the Court 
has upheld the constitutionality of detention based on future 
dangerousness in other contexts involving citizens, where 
the special deference to the political Branches in matters 
regarding aliens was not even involved. See Kansas v. 

18 

Hendricks, 521 U.S. 346 (1997); United States v. Salerno, 481 
U.S. 739 (1987). In light of the deference due Congress’s 
judgment in immigration matters, the government’s interest 
in preventing the release into society of an alien who is 
awaiting removal, and who has been determined by the 
Attorney General to pose a risk to the community if re- 
leased, is sufficiently weighty to justify Congress’s authori- 
zation of detention here. 

Petitioner’s long-time residency in this country does not 
mean that his detention following entry of a final order of 
deportation violates due process. Petitioner’s failure to 
obtain United States citizenship during his 44 years of 
residency here means that petitioner remains subject to the 
plenary power of Congress to expel aliens. That does not 
mean that the Due Process Clause of the Fifth Amendment 
is altogether inapplicable to petitioner. But it does mean 
that any due process inquiry must take into account the 
substantial deference owed the political Branches in deter- 
mining what process is due, as the court of appeals’ analysis 
in this case did. The court of appeals reasonably held that, 
for purposes of a due process analysis of immigration 
detention, petitioner stands essentially on the same footing 
as an excludable alien who has been ordered removed after 
seeking to enter the United States. The alien’s lack of a 
right to be present in the United States, and the govern- 
ment’s countervailing interests in protecting against danger 
to the community and effectuating removal, are the same in 
the two situations. Congress views the United States’s 
interests to be analogous in detaining a former resident alien 
like petitioner and an excludable alien, because both cate- 
gories of aliens are subject to detention beyond the removal 
period under 8 U.S.C. 1231(a)(6) (Supp. V 1999). 

Detention of an alien like petitioner under Section 
1231(a)(6) is not unconstitutionally indefinite or excessive. 
Such detention cannot fairly be characterized as indefinite in 
light of the existence of administrative procedures that 

19 

provide for a periodic and meaningful review of petitioner’s 
custody, and the possibility that continued diplomatic efforts 
with Lithuania, Germany or Russia might result in peti- 
tioner’s removal. Such detention is not excessive compared 
to the interests the government seeks to protect. As in 
Kansas v. Hendricks, Congress has adequately distin- 
guished the persons who may be detained under Section 
1231(a)(6) from other persons whose detention would not be 
related to a legitimate government interest. The fact that 
petitioner may currently be stateless does not mean that he 
cannot be removed to another country, particularly, for 
example, if he is able to obtain citizenship elsewhere. The 
courts should be especially reluctant to second-guess Exe- 
cutive Branch judgments regarding the prospects of re- 
moving such an alien, both because of the Executive’s 
greater expertise and access to all the relevant information 
and communications, and because of the need for the Nation 
to speak with one voice on such matters. 

ARGUMENT 

THE CONTINUED DETENTION OF AN ALIEN 
UNDER A FINAL ORDER OF DEPORTATION 
WHOSE REMOVAL HAS NOT YET BEEN EFFEC- 
TUATED COMPORTS WITH DUE PROCESS, 
WHERE THE DETENTION IS SUBJECT TO 
PERIODIC REVIEW TO DETERMINE WHETHER 

THE ALIEN WOULD PRESENT A RISK TO THE 
COMMUNITY OR OF FLIGHT IF RELEASED 

A. The Attorney General’s Decision To Detain An 

Alien Under A Final Deportation Order, Pursuant 

To Authority Granted By Congress, Must Be 

Accorded Substantial Deference Under The Con- 
stitution 

1. This Court has long made clear that the political 
Branches enjoy broad powers over immigration. Chae Chan 

20 

Ping v. United States, 130 U.S. 581, 606 (1889). Indeed, 
“over no conceivable subject is the legislative power of Con- 
gress more complete.” Fiallo v. Bell, 430 U.S. 787, 792 
(1977). The Court has explained that “any policy toward 
aliens is vitally and intricately interwoven with contem- 
poraneous policies in regard to the conduct of foreign rela- 
tions, the war power, and the maintenance of a republican 
form of government. Such matters are so exclusively en- 
trusted to the political branches of government as to be 
largely immune from judicial inquiry or interference.” 
Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). 

The authority of the political Branches in immigration 
matters derives from the “inherent and inalienable right of 
every sovereign and independent nation” to determine which 
aliens it will admit or expel. Fong Yue Ting v. United 
States, 149 U.S. 698, 711 (1893). “Courts have long recog- 
nized the power to expel or exclude aliens as a fundamental 
sovereign attribute exercised by the Government’s political 
departments largely immune from judicial control.” Shaugh- 
nessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). 

Contrary to petitioner’s contention (Br. 9, 14, 24-25), there 
is no exception to these fundamental principles for matters 
concerning the detention of aliens in connection with their 
removal from the United States. The detention of aliens, 
like other aspects of immigration, has clear implications for 
the Nation’s sovereignty, security, and foreign policy. 
Accordingly, the political Branches’ plenary power over 
immigration encompasses the formulation of policies con- 
cerning the detention of aliens against whom removal pro- 
ceedings have been commenced or a final order of removal 
has been entered. Indeed, “[p]roceedings to exclude or expel 
[aliens] would be vain if those accused could not be held in 
custody pending the inquiry into their true character and 
while arrangements were being made for their deportation.” 
Wong Wing v. United States, 163 U.S. 228, 235 (1896). 

21 

These concerns may be especially pronounced when the 
removal of an alien who is no longer entitled to remain in the 
United States cannot be effectuated immediately because of 
the refusal by another nation to accept responsibility for its 
own citizens. See Mezei, 345 U.S. at 216 (“Congress may 
well have felt that other countries ought not shift the onus to 
us; that an alien in respondent’s position is no more ours than 
theirs.”). That is especially so when the Attorney General 
reasonably determines that such an alien, who has no right 
to be here, would pose a risk of flight or danger to the 
community of the United States if released. 

Negotiations between the Executive Branch and a foreign 
country concerning the return of an alien, as well as to 
establish the logistics for accomplishing the return, can be 
sensitive and difficult, sometimes for reasons wholly 
unrelated to the circumstances of any particular alien. That 
could be true, for example, where the other country’s refusal 
to accept the return of its citizens is part of a broader 
diplomatic schism between the two nations, or where 
arrangements for repatriation are tied up with efforts at a 
more general normalization of relations. In other situations, 
negotiations with the other country may be especially 
difficult because of the particular alien involved—where, for 
example, the alien is a terrorist who the other country might 
want to remain in the United States precisely because of the 
risk of harm he presents, or the alien is simply unwelcome 
because of his criminal background or other characteristics. 
Critical sovereignty, security, and foreign policy concerns 
would arise if another country, simply by refusing to accept 
the return of its own citizens, could force the United States 
to allow those aliens to be at liberty in the United States, 
even where they would threaten harm to the community or 
flee if released. And if a United States court ordered the 
release of the aliens on the basis of a determination that they 
are unlikely to be removed in the near future, the effect 
would be to undermine the position of the United States in 

22 

the international community, speaking with one voice 
through the Executive Branch, that the other nation must 
promptly accept the return of its citizens who have been 
ordered deported from the United States. “The judiciary is 
not well positioned to shoulder primary responsibility for 
assessing the likelihood and importance of such diplomatic 
repercussions.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 
(1999). 

It is for reasons such as these that the political Branches 
must have broad latitude in fashioning policies concerning 
the detention or release of aliens who are ordered removed 
from the United States, and that courts must give great 
deference to Congress in enacting laws governing detention 
and to the Executive in implementing those laws. See 
Gisbert v. United States Attorney General, 988 F.2d 1437, 
1447 (“The United States cannot be forced to violate its 
national sovereignty in order to parole [criminal] aliens 
within its borders merely because [the native country] is 
dragging its feet in repatriating them.”), amended by 997 
F.2d 1122 (5th Cir. 1993); Barrera-Echavarria v. Rison, 44 
F.3d 1441, 1448 (9th Cir.) (en banc) (“Reading a time limit on 
detention [of excludable aliens] would risk frustrating the 
government’s ability to control immigration policy and 
relations with foreign nations.”), cert. denied, 516 U.S. 976 
(1995). 

2. This Court has expressly upheld the authority of the 
Attorney General, acting pursuant to congressional authori- 
zation, to detain an alien as a means of enforcing the decision 
that the alien is not entitled to be admitted into the United 
States. See Mezei, 345 U.S. at 210, 215-216. And the Court 
has upheld, against constitutional challenge, the power of 
Congress to vest the Attorney General with the discretion to 
determine whether to release an alien from custody pending 
deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 
(1993); Carlson v. Landon, 342 U.S. 524, 538-544 (1952); cf. 
United States v. Salerno, 481 U.S. 739, 748 (1987) (“Even 

23 

outside the exigencies of war, we have found that sufficiently 
compelling governmental interests can justify detention of 
dangerous persons. Thus, we have found no absolute consti- 
tutional barrier to detention of potentially dangerous re- 
sident aliens pending deportation proceedings.”). 

Petitioner’s claim (Br. 8, 11-13) that his immigration de- 
tention nonetheless necessarily implicates a fundamental 
liberty interest that requires application of heightened due 
process scrutiny cannot be reconciled with those rulings. 
The Court has made clear that when Congress vests in the 
Attorney General the discretionary authority over the de- 
tention of aliens subject to deportation, the Attorney 
General’s decisions are subject to only the most deferential 
standard of review. Carlson, 342 U.S. at 540-541 (noting 
congressional intent “to make the Attorney General’s ex- 
ercise of discretion presumptively correct and unassailable 
except for abuse,” and holding that the Attorney General’s 
detention determination can be overridden only “where it is 
clearly shown that it ‘was without a reasonable founda- 
tion’ ”); Flores, 507 U.S. at 306 (INS regulation governing 
detention must meet “the (unexacting) standard of rationally 
advancing some legitimate governmental purpose”). 
Petitioner’s invocation (Br. 13, 15, 20) of a narrow-tailoring 
standard is also inconsistent with those decisions. See, e.g., 
Flores, 507 U.S. at 301-302, 305, 306 (quoting narrow- 
tailoring standard when describing parties’ claim, but re- 
quiring no more than rationality and a “reasonable fit” be- 
tween governmental purpose and means chosen to advance 
that purpose). 

For these reasons, the Attorney General’s exercise of 
congressionally delegated authority to detain an alien in 
petitioner’s circumstances should be accorded the utmost 
deference under this Court’s precedents recognizing the 
plenary power of the political Branches with respect to 
immigration, which here includes protection of the United 
States and its citizens and lawful residents against harm that 

24 

might be perpetrated against them by aliens who have 
already been convicted of aggravated felonies. See Carlson, 
342 U.S. at 534-536, 538, 542; Aguirre-Aguirre, 526 U.S. at 
425 (“[J]udicial 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.’ ”). 

B. Detention Of An Alien Who Has Been Determined To 

Pose A Risk To The Community Or Be Unlikely To 

Comply With A Final Deportation Order If Released 

Furthers Important Governmental Interests And 

Comports With Due Process 

1. Congress has concluded that detention of a 

criminal alien under a final deportation order is 

justified in these circumstances 

Congress has made clear, over the course of the last 
decade, that in its judgment detention by the Attorney 
General of a criminal alien under a final order of deportation 
is justified where the alien poses a risk to the community or 
is unlikely to appear for further immigration proceedings if 
released. Preventing danger to the community is 
undoubtedly a legitimate goal of the government, Salerno, 
481 U.S. at 747, as is ensuring the appearance of aliens at 
future immigration proceedings, id. at 749. Congress has 
relied on those two interests in a series of recent 
amendments to the Immigration and Nationality Act (INA), 
8 U.S.C. 1101 et seq., which have included risk to the com- 
munity and risk of flight as grounds for continued detention 
of a criminal alien under a final order of deportation. 

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 
sentence, and not to release the aggravated felon from 
custody. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100- 
690, § 7343(a), 102 Stat. 4470; 8 U.S.C. 1252(a)(2) (1988). In 

25 

1990, Congress amended that provision to clarify that it 
applied to aliens both before and after they became subject 
to a final order of deportation. The 1990 amendment also 
added a statutory exception to the mandatory-detention 
provision that required the release on bond or other 
conditions of an aggravated felon who had been lawfully 
admitted for permanent residence, but only if the Attorney 
General determined that the alien was not a threat to the 
community and was likely to appear for any immigration 
hearings. See Immigration Act of 1990, Pub. L. No. 101-649, 
§ 504(a), 104 Stat. 5049; 8 U.S.C. 1252(a)(2)(A) and (B) (1988 
& Supp. II 1990). In 1991, Congress reworded that exception 
to provide that the Attorney General could not release a 
lawfully admitted alien who was an aggravated felon unless 
the alien demonstrated “to the satisfaction of the Attorney 
General that such alien is not a threat to the community and 
that the alien is likely to appear before any scheduled 
hearings.” Miscellaneous and Technical Immigration and 
Naturalization Amendments of 1991, Pub. L. No. 102-232, § 
306(a)(4), 105 Stat. 1751; 8 U.S.C. 1252(a)(2)(B) (Supp. III 
1991); 8 U.S.C. 1252(a)(2)(B) (1994). 

10 

When Congress enacted AEDPA in 1996, it eliminated the 
provision allowing release of aggravated felons (and certain 
other criminal aliens) if they satisfied the Attorney General 
that they would not pose a threat to the community and 
would be likely to appear for hearings if released. See 8 
U.S.C. 1252(a)(2), as amended by AEDPA § 440(c), 110 Stat. 
1277. That section of AEDPA was replaced less than six 
months later, however, by the provisions of IIRIRA that 

10 That is the version of the statute that was in effect when petitioner 
initially requested that he be released on bond pending his deportation 
proceedings (see J.A. 5-8 (March 14, 1994, IJ decision applying that 
statutory standard)), and when he filed his petition for habeas corpus 
relief in September 1995 (see J.A. 195). See also J.A. 77 (magistrate judge 
applying that statutory standard); J.A. 137-140 (district court invoking 
same statutory provision). 

26 

grant the Attorney General discretion to release a criminal 
alien after expiration of the statutory 90-day removal 
period, 

11 but specify that she may continue certain aliens in 
custody beyond that date, including any alien “who has been 
determined by the Attorney General to be a risk to the com- 
munity or unlikely to comply with the order of removal.” 8 
U.S.C. 1231(a)(6) (Supp. V 1999). 

12 

11 At the time of petitioner’s deportation proceedings, the INA 
referred to aliens who were present in the United States but subject to 
expulsion as “deportable,” and to aliens at the border who were subject to 
continued exclusion as “excludable.” See 8 U.S.C. 1182, 1251 (1994). The 
administrative proceedings in which those determinations were made 
were called “deportation” and “exclusion” proceedings, respectively. 8 
U.S.C. 1227, 1252 (1994). Section 301 of IIRIRA amended the INA to 
refer to “excludable” aliens as “inadmissible” aliens (e.g., 8 U.S.C. 1182, 
1225 (Supp. V 1999)), and established “removal” proceedings to take the 
place of “deportation” and “exclusion” proceedings (e.g., 8 U.S.C. 1229a 
(Supp. V 1999)). 

In this brief, we use pre-IIRIRA terminology when discussing 
historical facts relating to the entry of petitioner’s final deportation order 
under the former statutory framework and when discussing cases decided 
under pre-IIRIRA law. Elsewhere, we use the current “removal” 
terminology. 

12 In addition to the permanent provision of IIRIRA codified at 8 
U.S.C. 1231(a)(6) (Supp. V 1999), IIRIRA also contained transition period 
custody rules that governed the detention of certain aliens during the first 
two years following enactment of IIRIRA, pursuant to certification by the 
Attorney General that there was insufficient detention space. See 
IIRIRA § 303, 110 Stat. 3009-585 to 3009-587. Those rules provided a 
standard for release of lawfully admitted aliens similar to that set forth in 
the INA immediately prior to enactment of AEDPA. IIRIRA 
§ 303(b)(3)(B)(i), 110 Stat. 3009-587. In addition, the rules provided that an 
alien who was not lawfully admitted, and who could not “be removed 
because the designated country of removal will not accept the alien,” could 
be released if he similarly satisfied the Attorney General that he would 
“not pose a danger to the safety of other persons or of property and is 

27 

The augmented provisions for detention in AEDPA and 
IIRIRA represented Congress’s considered response to 
what it perceived to be substantial deficiencies in the system 
previously employed for deporting aliens from this country. 
Congress viewed immigration detention as a solution to the 
pressing national problem that had arisen due to the 
widespread commission of crimes by criminal aliens after 
being released by the INS during the deportation process, 

13 

likely to appear for any scheduled proceeding.” IIRIRA § 303(b)(3)(B)(ii), 
110 Stat. 3009-587. 

Both the magistrate judge and the district court were cognizant of the 
enactment of AEDPA and IIRIRA during the pendency of petitioner’s 
habeas corpus proceedings. See J.A. 92 (magistrate judge declining to 
determine whether Section 440 of AEDPA, 110 Stat. 1276, should be 
applied to petitioner’s case because he had already determined that peti- 
tioner was not entitled to relief under the more lenient pre-AEDPA law); 
J.A. 91 n.8 (magistrate judge stating that the transition period custody 
rules of IIRIRA § 303(b), 110 Stat. 3009-586, allowed petitioner to apply 
for a bond redetermination and that the INS had determined that bond 
would be denied); J.A. 139 n.4 (district court stating that the INS denied 
petitioner bond under the recently enacted transition period custody rules 
of IIRIRA). 

13 In floor debates preceding enactment of AEDPA, one of the 
sponsors of the bill explained that “recidivism rates for criminal aliens are 
high,” citing a Government Accounting Office (GAO) study that found that 
“77 percent of noncitizens convicted of felonies are arrested at least one 
more time.” 142 Cong. Rec. 7972 (1995). A GAO report published in July 
of 1997 revealed, for example, that approximately 2000 criminal aliens 
were released from prison in the second half of fiscal year 1995 before 
their deportation proceedings were completed and without assessment of 
the risk they posed to the public. The INS tracked the post-release 
criminal activity of 635 of those criminal aliens and found that 23 percent 
had been rearrested for crimes, including 184 felonies. General 
Accounting Office, Criminal Aliens: INS’ Efforts to Identify and Remove 
Imprisoned Aliens Need to be Improved 1, GAO/T-GGD-97-154 (July 15, 
1997). 

28 

as well as the disappearance of criminal aliens who were 
released. 

14 

In particular, 8 U.S.C. 1231(a)(6) (Supp. V 1999), as 
enacted by IIRIRA, reflects Congress’s determination that, 
when faced with the difficult situation of an alien under a 
final order of removal who has no right whatsoever to be in 
this country but who cannot be removed within the 90-day 
removal period provided for in 8 U.S.C. 1231(a)(1) (Supp. V 
1999), the Attorney General must be granted sufficient 
authority to determine in each case how best to serve the 
various competing interests. Those interests include pro- 
tecting the community from future harm by aliens adjudged 
not to be lawfully part of the community, ensuring the 
ultimate effectuation of removal orders, and releasing aliens 
where such release would not be inconsistent with the other 
interests. 

15 

14 An April 7, 1995 report issued by the Senate Committee on Govern- 
mental Affairs noted that “[o]ver 20 percent of nondetained criminal aliens 
fail to appear for deportation proceedings” and that “[u]ndetained criminal 
aliens with deportation orders often abscond upon receipt of a final 
notification from the INS that requires them to voluntarily report for 
removal.” S. Rep. No. 48, 104th Cong., 1st Sess. 2 (1995); id. at 24 (“In 
New York, for example, in fiscal year 1993, out of 1695 such notices to 
surrender sent to criminal and non-criminal aliens, 1486, or 87.7 percent 
failed to surrender.”). A March 1996 report by the Department of Justice, 
Office of the Inspector General, Deportation of Aliens After Final Orders 
Have Been Issued, “found that 89 percent of non-detained aliens with final 
orders of deportation failed to surrender for deportation when ordered to 
do so by the [INS].” 62 Fed. Reg. 48,183 (1997); see also 62 Fed. Reg. 
10,312, 10,323 (1997). 

15 When Congress enacted IIRIRA, it recognized that the government 
may have an interest in releasing aliens on conditions of supervision, 
rather than maintaining them in detention, in order to ease administrative 
and financial burdens on the INS. See IIRIRA § 303(b)(2), 110 Stat. 3009- 
586 (providing for up to two years’ delay of effective date of 8 U.S.C. 
1226(c) (Supp. V 1999), which mandates detention of certain criminal 
aliens during removal proceedings, if Attorney General notifies Congress 
that there is insufficient detention space and INS personnel available to 

29 

2. Congress’s authorization to detain dangerous aliens 

under final orders of removal is consistent with this 

Court’s due process precedents 

a. This Court has upheld exercises of detention authority 
by the Attorney General over aliens based on the threat of 
harm to the community that Congress determined would be 
posed by their release. In Mezei, the Court upheld against 
constitutional challenge the continued detention of an alien 
who had been ordered excluded (based on nondisclosed 
evidence and without a hearing) pursuant to a finding that 
the alien’s “entry would be prejudicial to the public interest 
for security reasons.” 345 U.S. at 208. The alien was 
returning from a 19-month trip abroad to his home in the 
United States where he had lived for 25 years, but he was 
adjudged to be permanently excludable from the United 
States because of the risk to the community that it was 
believed he would pose. The Court ruled that the continued 
detention of that alien on Ellis Island, because no country 
could be located to accept him, did not deprive the alien of 
any statutory or constitutional right. Id. at 215. While 
acknowledging the resulting hardship caused to the alien, 

implement the provision). Nonetheless, Congress clearly intended that, 
under IIRIRA, the Attorney General would increase the INS’s detention 
of criminal aliens by retaining in custody those aliens whose release would 
pose a risk to the community or a probability of flight. See 8 U.S.C. 1368 
(Supp. V 1999) (requiring Attorney General, subject to availability of 
appropriations, to increase INS detention facilities and to report 
semiannually to Congress estimates of: the detention space needed to 
implement IIRIRA’s detention provisions (including Section 1231(a)(6)); 
the number of criminal aliens (and separately the number of aggravated 
felons) who were released into the community by the INS; and the number 
of aliens released into the community by the INS due to a lack of detention 
facilities notwithstanding circumstances the Attorney General believed 
justified detention); IIRIRA § 387, 110 Stat. 3009-655 (providing for pilot 
programs to determine feasibility of using closed military bases as INS 
detention centers). 

30 

the Court deferred to Congress, noting that “the times being 
what they are, Congress may well have felt that other 
countries ought not shift the onus to us; that an alien in 
respondent’s position is no more ours than theirs.” Id. at 
216. “Whatever our individual estimate of that policy and 
the fears on which it rests,” the Court reasoned, “[the 
alien’s] right to enter the United States depends on the 
congressional will, and courts cannot substitute their judg- 
ment for the legislative mandate.” Ibid. (citing Harisiades, 
342 U.S. at 590-591). 

In Carlson, the Court upheld the Attorney General’s 
exercise of discretionary authority to detain certain aliens 
during the pendency of their deportation proceedings based 
on a determination that the aliens’ release “would be 
prejudicial to the public interest and would endanger the 
welfare and safety of the United States” (because the aliens 
had participated to varying degrees in Communist activi- 
ties), notwithstanding the aliens’ many years’ residence in 
this country without causing such harm, their family 
connections, and their adherence to previously imposed bail 
conditions. 342 U.S. at 529-530. The Court rejected the 
aliens’ argument, analogous to petitioner’s here, that their 
detention violated the Fifth Amendment because it was not 
based on a fear that they would fail to appear for hearings or 
for deportation. Id. at 533-534. The Court made it clear that 
risk of flight is not the only governmental interest that 
justifies immigration detention, explaining that “[d]etention 
is necessarily a part of th[e] deportation procedure. Other- 
wise aliens arrested for deportation would have opportun- 
ities to hurt the United States during the pendency of 
deportation proceedings.” Id. at 538. Moreover, the Court 
observed, because “purpose to injure” could not be imputed 
to all aliens subject to deportation, Congress properly 
granted the Attorney General discretion to determine which 
aliens to detain on that ground. Ibid. 

31 

The Court in Carlson thus upheld the authority of the 
Attorney General to determine whether an individual alien 
would pose a risk to the community if released, noting that 
“the discretion as to bail in the Attorney General was 
certainly broad enough to justify his detention of all the[] 
parties without bail as a menace to the public interest.” 342 
U.S. at 541; see also id. at 542-544. The Court concluded by 
declaring that “[t]here is no denial of the due process of the 
Fifth Amendment under circumstances where there is 
reasonable apprehension of hurt from aliens charged with a 
philosophy of violence against this Government.” Id. at 542. 

As in Mezei and Carlson, there is no denial of due process 
in this setting if the Attorney General determines that there 
is a reasonable apprehension of harm to the community by 
an alien (like petitioner) who is under a final order of de- 
portation and has engaged in serious criminal conduct in the 
past, as evidenced by his conviction of an aggravated felony. 
The government’s interest in protecting the community from 
the threat of harm posed by such an alien is a legitimate 
objective and has been “historically so regarded.” Kansas v. 
Hendricks, 521 U.S. 346, 363 (1997). 

b. The Mezei and Carlson cases demonstrate that peti- 
tioner’s general proposition (Br. 8, 9, 10, 13-17, 19)— 
that detention of an alien cannot be based on future 
dangerousness—is wrong. 

16 The decisions on which peti- 

16 The INS’s determination not to release petitioner in this case was 
based on the risk of flight he would pose if released, as well as the risk of 
harm to the community he would pose. Petitioner has a long and serious 
record of flight, including three failures to appear on a burglary charge, 
failure to return in a timely manner after release on a furlough, a failure to 
appear at his original deportation hearing after having been released by 
the INS on conditions, flight from law-enforcement officials after being 
charged with a serious drug-trafficking crime, and his five-year fugitive 
status on that charge. See pp. 3-4, supra. Indeed, in denying petitioner’s 
request for release on bond during the pendency of his deportation 
proceedings, the IJ explained that “[i]t is not really necessary” to decide 

32 

tioner relies (Br. 13-17) are not to the contrary. None of 
those cases involved the detention of an alien, let alone an 
alien under a final order of deportation who has been 
adjudicated to have no legal right to remain in this country. 
Moreover, the Court upheld the constitutionality of de- 
tention based on future dangerousness in two of those cases, 
Kansas v. Hendricks, 521 U.S. 346 (1997), and United States 

v. Salerno, 481 U.S. 739 (1987), both of which involved the 
detention of citizens. A fortiori, they do not stand for the 
proposition that the detention of aliens in the circumstances 
presented here is unconstitutional. 

The Hendricks Court explained that a significant liberty 
interest of the individual was at stake there because of his 
involuntary civil commitment under a sexually violent pre- 
dator statute, but emphasized that the individual’s liberty 
interest in that setting “is not absolute” and “may be over- 
ridden even in the civil context” in certain circumstances. 

whether petitioner would pose a threat to the community if released, 
because petitioner’s “five year flight from prosecution and the information 
brought out by the [INS] on cross-examination casts serious doubt on 
[petitioner’s] likelihood to appear at future hearings.” J.A. 8. Although 
petitioner now attempts to discount the risk of flight as a basis for his 
detention by the INS (see Br. 13-14), the district court expressly found 
that, “[c]onsidering petitioner’s recidivist history and his prior episode of 
‘bond jumping,’ petitioner has not met his burden of proving that he is not 
a threat to the community and that he is likely to appear for scheduled 
hearings.” J.A. 139. The court of appeals embraced that district court 
finding, noting that, should petitioner no longer pose such a danger or 
flight risk, “he would doubtless be released.” J.A. 204-205. 

Petitioner errs in contending that the government’s interest in 
ensuring his availability for removal is not a justification for his detention 
because that interest “becomes as remote as departure itself.” Pet. Br. 14. 
For the reasons discussed below, petitioner unduly discounts the 
likelihood of his removal. See pp. 47-49, infra. But because petitioner 
does not challenge the general validity of risk of flight as a basis for 
immigration detention, we discuss further only his challenge to future 
dangerousness as a basis for immigration detention. 

33 

521 U.S. at 356. The Court concluded that, because the 
statute was limited to persons who were found to pose a risk 
of future dangerousness and were unable to control their 
dangerousness, the statute “adequately distinguishe[d]” the 
detainees “from other dangerous persons who are perhaps 
more properly dealt with exclusively through criminal pro- 
ceedings” and, therefore, “plainly suffice[d] for due process 
purposes.” 521 U.S. at 360. 

Similarly, the Salerno Court, in the course of upholding 
pretrial detention based on future dangerousness, rejected 
the argument that future dangerousness could not justify 
detention, explaining that the Court has “repeatedly held 
that the Government’s regulatory interest in community 
safety can, in appropriate circumstances, outweigh an 
individual’s liberty interest.” 481 U.S. at 748. Significantly, 
among the examples cited in Salerno were the Court’s 
previous holdings that there is “no absolute constitutional 
barrier to detention of potentially dangerous resident aliens 
pending deportation proceedings.” Ibid. (citing Carlson and 
Wong Wing, supra). The Court recognized the liberty 
interest at stake in Salerno, but, relying on its cases holding 
that an individual’s liberty interest “may, in circumstances 
where the government’s interest is sufficiently weighty, be 
subordinated to the greater needs of society,” concluded that 
the federal pretrial detention statute satisfied that standard. 
481 U.S. at 750-751; cf. id. at 752-753 (rejecting argument 
that, because “a primary function of bail is to safeguard the 
courts’ role in adjudicating the guilt or innocence of defen- 
dants,” the Eighth Amendment prohibits the government 
from restricting pretrial release to serve compelling inter- 
ests other than risk of flight, such as protecting society from 
dangerous persons). Similarly here, in light of the deference 
due the judgment of Congress and the Executive in immi- 
gration matters, the government’s interest in preventing the 
release into society of an alien who is awaiting removal from 
this country, and who has been determined by the Attorney 

34 

General to pose a risk to the community if released, is 
sufficiently weighty to justify detention. 

3. Petitioner’s prior long-time residency in this country 

does not render his detention unconstitutional, be- 
cause his right to remain here has been terminated 

a. Petitioner is wrong in contending (Br. 21-25) that his 
long-time presence in this country entitles him to more 
stringent constitutional limitations on detention than the 
court of appeals afforded him. 

Despite petitioner’s 44 years of residency in this country, 
he never obtained United States citizenship. This Court has 
made clear that aliens who “fail to obtain and maintain 
citizenship by naturalization * * * remain subject to the 
plenary power of Congress to expel them under the 
sovereign right to determine what noncitizens shall be 
permitted to remain within our borders.” Carlson, 342 U.S. 
at 534. As the Court has recognized, the fact that “aliens 
remain vulnerable to expulsion after long residence is a 
practice that bristles with severities. But it is a weapon of 
defense and reprisal confirmed by international law as a 
power inherent in every sovereign state.” Harisiades, 342 
U.S. at 587-588. 

Congress’s plenary power over aliens does not, however, 
render the Due Process Clause of the Fifth Amendment 
altogether inapplicable to petitioner. As the court of appeals 
acknowledged, petitioner and other aliens “can of course 
claim some constitutional protections.” J.A. 207 (also noting 
that, under Fifth Circuit precedent, even excludable aliens 
who fail to effect an entry into the United States are con- 
sidered persons entitled to protection under the Fourteenth 
Amendment (citing Lynch v. Cannatella, 810 F.2d 1363, 
1375 (1987)). Cf. Jean v. Nelson, 472 U.S. 846 (1985) (re- 
manding for consideration of how discretion was exercised 
under statute and declining to reach constitutional issue of 
whether Fifth Amendment applies to consideration of un- 

35 

admitted aliens for parole); Plyler v. Doe, 457 U.S. 202 (1982) 
(holding that alien children who were not legally admitted 
into United States were “persons” entitled to claim benefit 
of Equal Protection Clause of Fourteenth Amendment). But 
the fact that petitioner is a “person” protected by the Due 
Process Clause does not determine what process is “due” 
under that Clause. Furthermore, in determining what pro- 
cess (both procedural and substantive) is due, substantial 
weight must be given to the good faith judgments of Con- 
gress and of the Attorney General, to whom Congress has 
assigned the responsibility for administering the INA and 
for weighing the relevant factors in doing so. Mathews v. 
Eldridge, 424 U.S. 319, 349 (1976). 

b. The court of appeals in this case reasonably held that, 
for purposes of due process scrutiny of immigration 
detention, petitioner stands on essentially the same footing 
as an excludable alien who has been ordered removed after 
seeking to enter the United States. The alien’s lack of a 
right to be present in the United States, and the govern- 
ment’s countervailing interests in protecting against danger 
to the community and effectuating removal, are the same in 
the two situations. See J.A. 206-211, 219-227; see also Ho v. 
Greene, 204 F.3d 1045, 1058-1059 (10th Cir. 2000) (once a 
final order of deportation has been entered against a 
resident alien, that alien has no greater right with respect to 
release into this country than does an alien seeking to enter 
the country for the first time) (citing Mezei, 345 U.S. at 213). 
Petitioner has exhausted all avenues of possible relief 
from deportation, and the final order of deportation extin- 
guished his status as a lawful permanent resident and 
eliminated any legal right he had to remain here. See 8 
U.S.C. 1101(a)(20) (1994); 8 U.S.C. 1101(a)(47)(B)(ii) (Supp. V 
1999); 8 C.F.R. 1.1(p). As the court of appeals put it, “[w]hen 
a former resident alien is * * * finally ordered deported, 
the decision has irrevocably been made to expel him from 
the national community. Nothing remains but to effectuate 

36 

this decision.” J.A. 224. Petitioner remains in this country 
only because his final deportation order has not yet been 
effectuated. 

The fact that petitioner has no legal right to be in this 
country means that he has no right to maintain ties with 
members of the community by maintaining a continued 
presence at large in our society, regardless of the length of 
his prior residency here. Thus, the remaining interests 
petitioner has at stake at this point are substantially dif- 
ferent from, for example, those of the alien in Landon v. 
Plasencia, 459 U.S. 21 (1982), who had developed ties to this 
country as a long-term resident and still had the possibility 
of establishing, during exclusion proceedings, that she should 
be allowed to retain her status as a lawful permanent re- 
sident and maintain those ties. See Ho v. Greene, 204 F.3d at 
1059. 

The United States’ interests in protecting its national 
sovereignty, in not allowing recalcitrance on the part of 
another country in accepting the return of its citizens to 
dictate the presence of foreign nationals at large in this 
country, and in protecting our society from any such foreign 
nationals who would pose a danger if released, are the same 
in the case of an alien under a final order of deportation, re- 
gardless of his prior residency here, as they are in the case of 
an alien who has never resided here. The only act remaining 
to be carried out in both cases is the actual removal of the 
alien. 

Congress, as the Branch of government having plenary 
authority to establish policies affecting aliens, regards the 
United States’ interest to be analogous in detaining a former 
resident alien and an alien who never entered the country, at 
the point at which either is under a final order of removal. 
In 8 U.S.C. 1231(a)(6) (Supp. V 1999), Congress vested the 
Attorney General with the discretionary authority to detain 
beyond the removal period both aliens who were admitted to 
the country but subsequently ordered deported on one of the 

37 

specified grounds, regardless of how long they resided in this 
country (i.e. aliens “removable under section 1227(a)(1)(C), 
1227(a)(2), or 1227(a)(4)” of Title 8), and aliens who were 
never admitted to this country and never resided here (i.e. 
aliens “inadmissible under section 1182” of Title 8). 8 U.S.C. 
1231(a)(6) (Supp. V 1999). And Congress made no distinction 
between aliens who have resided in this country, regardless 
of how long, and aliens who have never resided here, when it 
authorized the Attorney General to detain beyond the 
removal period any alien she determines “to be a risk to the 
community or unlikely to comply with the order of removal.” 
8 U.S.C. 1231(a)(6) (Supp. V 1999). 

17 

Treating aliens under a final order of removal in the same 
manner, regardless of whether they are former residents 
being expelled or applicants being barred from entering, is 
wholly consistent with the scope of the political Branches’ 
authority over aliens, as this Court has long recognized: 

The right of a nation to expel or deport foreigners, 
who have not been naturalized or taken any steps 
towards becoming citizens of the country, rests upon the 
same grounds, and is as absolute and unqualified as the 
right to prohibit and prevent their entrance into the 
country. 

* * * * * 

The power to exclude aliens and the power to expel them 
rest upon one foundation, are derived from one source, 

17 Indeed, in IIRIRA, Congress took a significant step toward 
eliminating distinctions between the treatment of resident aliens and 
aliens applying for admission when it created one new proceeding, termed 
a “removal” proceeding, in which to determine both expulsion and 
exclusion cases, replacing the formerly distinct deportation and exclusion 
proceedings. See note 11, supra. 

38 

are supported by the same reasons, and are in truth but 
parts of one and the same power. 

Fong Yue Ting v. United States, 149 U.S. 698, 707, 713 
(1893). 

That is not to say that the status of an alien—be it his 
presence outside of the country, his lawful permanent 
residence in this country, or some other feature—cannot be 
relevant to certain due process inquiries. Plasencia, for 
example, illustrates that presence outside the United States 
may be significant for some purposes, whereas long-time 
residency may be relevant for others. The Court held in 
Plasencia that an alien making a physical re-entry to the 
country was properly placed in exclusion proceedings as an 
alien seeking admission, notwithstanding the fact that she 
was a lawful permanent resident claiming that she should 
not be considered to be making an entry and should, instead, 
be placed in deportation proceedings based on her 
permanent resident status. 459 U.S. at 27-28. The Court 
further held, however, that, as a permanent resident alien, 
she had developed ties to the country that entitled her to 
more procedural due process protections during her 
exclusion hearing than would be due an alien who was not a 
permanent resident. Id. at 32-34. Significantly, the dis- 
positive fact in that procedural due process analysis was not 
that the alien was physically present in the country, because 
she was not (she was detained at a port of arrival), but 
rather the particular interest of the alien that was at 
stake—whether she could remain a permanent resident of 
the country and maintain her ties thereto—considered in 
light of the competing governmental interests. Id. at 34; see 
also Flores, 507 U.S. at 302 (“ ‘[s]ubstantive due process’ 
analysis must begin with a careful description of the asserted 
right”). As the court of appeals in this case explained, the 
fact that aliens outside the United States “are entitled to a 
lesser degree of procedural due process in proceedings to 

39 

determine whether they may enter the country stems 
ultimately not from their status as such, but rather from the 
nature of what is asserted.” J.A. 220. 

In Mezei, the nature of the alien’s interest was also the 
focus of the Court’s analysis, not simply the fact that he was 
outside of the country. Like petitioner, the alien there had 
been a long-time resident of the United States (for 25 years), 
but the Court did not find that that status entitled him to 
heightened due process protections even in his exclusion 
proceedings. Because the alien had been gone from the 
country for approximately 19 months, he did not have an 
interest in maintaining ties to the country analogous to that 
of a current resident alien. Other cases cited by petitioner 
illustrate that an alien’s status affects the due process 
analysis in cases where the governmental interest at stake is 
not based on the federal government’s authority over aliens. 
E.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (distinguished 
in Fong Yue Ting, 149 U.S. at 725, as presenting the 
question “of the power of a State over aliens continuing to 
reside within its jurisdiction, not of the power of the United 
States to put an end to their residence in the country”); 
Plyler v. Doe, supra; see Mathews v. Diaz, 426 U.S. 67, 84-87 
(1976). 

The fact that an alien is under a final deportation order 
does not mean that such an alien has no substantive due 
process rights at all. Although an order eliminates the 
alien’s right to be at large in this country and, therefore, 
diminishes the substantive interest at stake in detention de- 
cisions, it does not, for example, eliminate an alien’s interest 
in not being subject to punishment by imprisonment at hard 
labor without a judicial trial to establish his guilt. Wong 
Wing, 163 U.S. at 235 (distinguishing punishment at hard 
labor from detention of an alien subject to deportation). In 
sum, the due process analysis turns not only on the status of 
the person as an alien, but rather also on the nature of the 
alien’s interest that is at stake, considered in light of the 

40 

governmental purposes furthered by the challenged govern- 
mental action. 

C. Detention Of Aliens Such As Petitioner Under Sec- 
tion 1231(a)(6) Is Not Unconstitutionally Indefinite 

Or Excessive 

Petitioner’s characterization of his detention as indefinite 
(Br. 16, 25) and excessive (Br. 20) is both erroneous and 
legally insufficient to render his detention in the present 
circumstances a violation of substantive due process. 

1. Petitioner’s detention cannot fairly be characterized as 
permanent or indefinite, in light of (a) the existence of 
administrative procedures that provide for a periodic and 
meaningful review of petitioner’s custody, and (b) the 
possibility that continued diplomatic efforts with Lithuania, 
Germany, or Russia may result in petitioner’s removal. The 
future termination of petitioner’s detention was not demar- 
cated by a specific event, unlike an alien’s mandatory de- 
tention pending removal proceedings or his detention during 
the 90-day removal period. But continued detention under 
Section 1231(a)(6) is limited by the Attorney General’s ad- 
ministrative review procedures. 

18 Petitioner’s detention 

18 The INS’s interim regulations implementing the permanent 
detention provisions of IIRIRA, 8 C.F.R. 241.4, were not promulgated 
until March 6, 1997, and they became effective on April 1, 1997. 62 Fed. 
Reg. 10,312. That was after the magistrate judge’s February 3, 1997, 
report and recommendation in this case, and only a few months before 
entry of the district court’s judgment in October 1997. The INS’s 
memoranda implementing further procedures for custody reviews of 
aliens detained beyond the removal period (see App., infra, 27a-39a; see p. 
43, infra) were not issued until 1999. Because petitioner was released in 
late 1997 pursuant to the district court’s order, the question of his 
detention was not reviewed by the INS under the supplementary 
procedures. 

On appeal, the court of appeals relied on the custody review procedures 
in effect at the time of its consideration of the case because the INS’s 
detention of petitioner would now be governed by 8 U.S.C. 1231(a)(6) 

41 

would cease under those procedures if he established that he 
no longer posed a risk to the community and that he was 
likely to be available for removal, and those procedures 
afford an ongoing opportunity to make such a showing. See 
Chi Thon Ngo v. INS, 192 F.3d 390, 399 (3d Cir. 1999) 
(interim procedures “provide[d] reasonable assurance of fair 
consideration” of an alien’s suitability for release pending his 
removal from the United States), as amended on Dec. 30, 
1999; see also 65 Fed. Reg. 80,281, 80,285 (2000) (“approxi- 
mately 6,200 aliens have been provided custody reviews by 
district directors during the period from February 1999 
through mid-November 2000, to determine whether deten- 
tion of the alien beyond the 90-day removal period is war- 
ranted”; “[o]f those aliens, approximately 3,380 were re- 
leased”). 

19 Also, the INS’s detention of petitioner would 

(Supp. V 1999) and those implementing regulatory procedures. J.A. 200- 
203; cf. Ho v. Greene, 204 F.3d at 1055 n.8 (declining to decide which 
version of the statute governs the continued detention of an alien who was 
under a final order of deportation at the time of IIRIRA’s effective date). 
When the court of appeals reversed the judgment of the district court, it 
stayed its mandate. J.A. 3. The district court’s order that petitioner be 
released therefore remains in effect. If this Court affirms the court of 
appeals’ judgment, the INS will then decide whether petitioner should be 
returned to custody under the current standards. 

19 Petitioner’s characterization of the nature and actual length of the 
detention at issue here is inaccurate. For example, petitioner asserts that, 
“[b]ut for the district court’s grant of habeas corpus [relief], his 
incarceration would now have stretched into six years.” Pet. Br. 15; see 
also id. at 8. He also asserts (Br. 25) that “without relief from this Court, 
he will languish in jail forever.” See also id. at 7 (claiming that he “will 
return to prison if this Court rules against him”). 

But this case does not involve mandatory detention. The issue here is 
whether the Attorney General has the authority, consistent with the 
Constitution, to continue to detain an alien such as petitioner in the 
exercise of the discretion granted her by Congress. Petitioner’s state- 
ments wholly disregard the INS’s periodic administrative custody reviews 
and the possibility that, if petitioner had not been released pursuant to 

42 

necessarily cease upon his removal from this country—a 
matter that continues to be the subject of INS efforts. 

On March 6, 1997, the Attorney General promulgated 
regulations setting forth the manner in which she would 
exercise her discretion to detain or release aliens under 
Section 1231(a)(6). See 62 Fed. Reg. 10,312. Those regula- 
tions authorized INS district directors to release aliens who 
demonstrated that they would not pose a danger to the 
community or a significant flight risk if released. See 8 
C.F.R. 241.4 (set forth at App., infra, 7a-8a). The regula- 
tions set forth a non-exhaustive list of factors that the 
district directors could consider in making that determina- 
tion: the nature and seriousness of criminal convictions; 
other criminal history; sentence(s) imposed and time actually 
served; history of failures to appear; probation history; dis- 
ciplinary problems while in custody; evidence of reha- 
bilitative efforts or recidivism; equities in the United States; 
and prior immigration violations and history. 8 C.F.R. 241.4. 

court order, he might have been released by the INS under its custody 
review procedures. 

Moreover, the length of the specific period of detention at issue 
here—post-removal-period custody as authorized currently under 8 
U.S.C. 1231(a)(6) (Supp. V 1999)—was less than the four years petitioner 
repeatedly claims (Br. 8, 13, 15, 16). Petitioner’s removal order became 
final on May 2, 1994. At that time, the INA afforded the Attorney General 
six months in which to remove an alien. That period did not expire for 
petitioner until approximately November 2, 1994. Petitioner filed the 
instant habeas corpus action in September 1995, at which time he had been 
in post-removal-period custody for approximately 10 months. The district 
court ordered his release on October 30, 1997, a total of approximately 
three years after expiration of his removal period. During some of that 
time, i.e., from the enactment of AEDPA on April 24, 1996, to the October 
8, 1996, effective date of the transition period custody rules (see note 12, 
supra), the Attorney General was not authorized by statute to release 
petitioner because he was subject to mandatory detention as an 
aggravated felon under 8 U.S.C. 1252(a)(2), as amended by AEDPA 
§ 440(c), 110 Stat. 1277. 

43 

District directors also were authorized to consider other 
factors that were not specifically listed. 8 C.F.R. 241.4(a). 
Aliens who had been detained during the removal period 
were allowed to request a formal custody review by the INS 
district director after their deportation orders became final 
and could appeal any resulting denial to the Board of Immi- 
gration Appeals (BIA). See 8 C.F.R. 236.1(d)(2)(ii) and 
(3)(iii), 241.4, 241.5. 

As a supplement to that regulatory procedure, the INS 
Executive Associate Commissioner issued a memorandum in 
February 1999 that established additional procedures, under 
which the custody status of detained aliens whose removal 
was not immediately practicable would be subject to auto- 
matic review during the initial 90-day removal period and (if 
the alien was not released) every six months thereafter. 
App., infra, 27a-31a. In August 1999, the Executive Associ- 
ate Commissioner issued a second memorandum that insti- 
tuted still further procedures, which included centralized 
review by a special post-order detention unit in INS Head- 
quarters of the custody status of detained aliens such as 
petitioner. App., infra, 32a-39a. Those procedures were 
effective immediately and are the procedures described by 
the court of appeals. See J.A. 203-205. They were intended 
to operate on an interim basis, pending anticipated per- 
manent changes to the regulations themselves. 

At the same time those interim procedures were issued, 
the Attorney General and the Commissioner announced 
their intention to promulgate new regulations establishing a 
formal program for reviewing the continued custody under 
Section 1231(a)(6) of aliens who are not removed during 
the 90-day removal period. Those regulations were to be 
modeled after the regulations establishing the Cuban Re- 
view 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. 

44 

212.12(a)—who have been ordered excluded from the United 
States but who cannot be returned to Cuba at this time. On 
June 30, 2000, the INS published proposed regulations. 65 
Fed. Reg. 40,540. Those regulations were published in final 
form on December 21, 2000, and are now in effect. 65 Fed. 
Reg. 80,281-80,298; see App., infra 9a-26a. The current 
regulations are not substantially different in relevant re- 
spects from the proposed regulations published in June. 

Under the now-current regulations, the INS district 
director maintains responsibility for the initial review of an 
alien’s custody when the alien’s immediate removal is not 
practicable at the expiration of the 90-day removal period. 
The district director conducts a record review, including a 
review of any materials the alien may want to submit, and 
has the discretion to interview the alien. See 65 Fed. Reg. at 
80,295-80,296. If the district director decides to continue the 
alien in custody at that point, authority over the alien’s de- 
tention is then transferred to a post-order detention unit at 
the INS Headquarters, either at the end of the 90-day 
removal period or within three months thereafter. That unit 
will then commence a custody review within 30 days of the 
transfer of detention authority. Id. at 80,291. 

If the initial headquarters review of the alien’s records 
does not result in a decision to release the alien, he is inter- 
viewed by a two-member panel of INS officers, who make a 
recommendation to the headquarters unit, as under the 
Mariel Cuban Review Plan. See 65 Fed. Reg. at 80,296. The 
headquarters unit then makes the final decision whether to 
release the alien at that point or to continue him in deten- 
tion. If the alien is not released, his custody status is again 
reviewed under the headquarters review process within one 
year, if the alien has not been removed since the last review. 
Id. at 80,297; cf. Hendricks, 521 U.S. at 364 (upholding civil 
commitment of sexually violent predator as “only potentially 
indefinite” because a determination regarding commitment 
must be made annually, thereby demonstrating that the 

45 

State does not intend a detainee to remain in custody beyond 
the period during which he continues to present a threat of 
dangerousness). The headquarters unit may review an 
alien’s custody at more frequent intervals, upon request of 
the alien based on a material change in circumstances since 
the last annual review. 65 Fed. Reg. at 80,297. The alien 
receives advance, written notice of custody reviews, is 
afforded an opportunity to submit any relevant material for 
consideration by INS officials, and may be assisted by a 
representative of his choice during the review process. Ibid. 

Petitioner asserts that these elaborate administrative 
safeguards are inadequate. But petitioner mischaracterizes 
the process, claiming that “[t]he INS custody review pro- 
cedures do not cure the substantive due process violation” 
because, in petitioner’s view, “they omit consideration of key 
factors in the balancing test from the director’s decision to 
detain.” Pet. Br. 9. Specifically, petitioner asserts that the 
relevant INS regulation “omits from the director’s periodic 
reviews of continued detention consideration of both the 
length of detention, and the future likelihood of deportation 
being effected.” Br. 15. But that is not true. The INS 
regulation provides a nonexclusive list of factors that the 
administrative decisionmakers may consider and allows con- 
sideration of other relevant factors, including those factors 
cited by petitioner. See 65 Fed. Reg. at 80,288. 

Petitioner’s objection (Br. 15) to having the district di- 
rector be the decisionmaker disregards the supplemental 
procedures that were implemented by the INS in 1999 and 
formalized by regulation to provide for centralized decision- 
making by a specialized unit in the INS Headquarters, 
analogous to the process that has successfully been applied 
to the periodic custody reviews for Mariel Cubans. That 

46 

centralized decisionmaking has been enhanced in the final 
regulations. See 65 Fed. Reg. at 80,295. 

20 

Contrary to petitioner’s contention (Br. 15 & n.5), the fact 
that the INS’s custody review process does not call for all of 
the same procedures that the pretrial detention statute at 
issue in Salerno provided does not render it constitutionally 
deficient. Unlike the criminal defendants in Salerno, peti- 
tioner has absolutely no legal right to be in the United 
States. He is subject to a final order of deportation that 
extinguished all such rights. Also, the fact that the Attorney 
General may release aliens on conditions does not mean (see 
Pet. Br. 9, 21) that the Constitution bars her from concluding 
that such conditions are not sufficient in some cases to 
protect against the risk of harm or flight an alien would pose 
if released. 

2. Detention of aliens under 8 U.S.C. 1231(a)(6) (Supp. V 
1999) is not unconstitutionally excessive in relation to the 
interests the government seeks to protect. As the State did 
in Hendricks, Congress has adequately distinguished the 
persons who may be detained under Section 1231(a)(6) from 
those who are dealt with exclusively through criminal pro- 
ceedings. 

21 Only aliens who are under a final order of re- 

20 The current regulations no longer include the “clear and convincing” 
evidence standard to which petitioner objects (Br. 14). Instead, they 
provide that the Attorney General may release an alien “if the alien 
demonstrates to the satisfaction of the Attorney General or her designee 
that his or her release will not pose a danger to the community or to the 
safety of other persons or to property or a significant risk of flight pending 
such alien’s removal from the United States.” See 65 Fed. Reg. at 80,295. 

21 Restricting the Attorney General’s authority over aliens subject to 
final removal orders to criminal prosecution, as petitioner suggests (Br. 

21), would not adequately further the government’s interests. Prosecution 
of such aliens could further delay their removal from this country during 
the duration of their criminal sentences, while further burdening law 
enforcement and prison resources for a longer period of time. 

See 8 

U.S.C. 1231(a)(4)(A) (Supp. V 1999) (providing that, except in limited cir- 
cumstances, “the Attorney General may not remove an alien who is 

47 

moval may be detained by the Attorney General under 
Section 1231(a)(6). Thus, Section 1231(a)(6) applies only if an 
alien has already been finally adjudged to lack any under- 
lying right to remain in the United States, and therefore has 
a greatly diminished liberty interest in living at large in this 
country. In addition, in order to be detained under Section 
1231(a)(6), the alien must be inadmissible; be deportable on 
certain specified grounds, such as for the commission of an 
aggravated felony or for conduct endangering public safety 
or national security; or be determined by the Attorney 
General to pose a risk to the community or to be unlikely to 
comply with the removal order. Cf. Salerno, 481 U.S. at 747 
(statute limited detention to persons who were involved in 
serious crimes). Moreover, INS’s administrative procedures 
guard against detention that is not related to legitimate 
government interests. 

3. Petitioner’s claim that he currently is stateless and not 
a citizen of any country (Br. 5, 8 n.4, 17) does not mean that 
he cannot be removed—or, as petitioner would have it, that 
any detention of him by the INS is unconstitutionally 
excessive, regardless of the risk to the community or of 
flight he would pose if released. 

The court of appeals correctly ruled that it cannot “now be 
said with any real assurance” that petitioner “will never be 
deported.” J.A. 212. The court of appeals properly deferred 
to the Executive Branch in this matter of immigration and 
foreign policy. Diplomatic efforts are committed by the Con- 
stitution to the Executive Branch, which—because of its 
special expertise and access to information—is responsible 
for bringing about their success and is best situated to pre- 
dict whether that will happen. Having reviewed the volumi- 
nous record provided by petitioner and the government, the 
court of appeals provided a detailed summary of the INS’s 

sentenced to imprisonment until the alien is released from imprison- 
ment”). 

48 

efforts to remove petitioner to either Lithuania or Germany. 
J.A. 194-195. It then concluded that, even if petitioner’s 
removal may seem “problematical, difficult, and distant” in 
the present circumstances, that is not sufficient— “[g]iven 
the traditional deference [courts] show to the other branches 
in matters of immigration policy”—for petitioner to meet the 
very high burden of showing that “deportation is 
impossible.” J.A. 219. See also Ngo, 192 F.3d at 398 (con- 
cluding “[i]t is extremely unlikely” that the prolonged deten- 
tion of an excludable alien from Vietnam would be per- 
manent, in light of the diplomatic efforts between the United 
States and Vietnam to negotiate a repatriation agreement, 
even though the court characterized the negotiations as 
proceeding at an “agonizingly slow” rate). 

22 

22 The court of appeals observed that “[c]ertainly there has been no 
definitive denial by Lithuania of any application for citizenship by 
[petitioner].” J.A. 216. Subsequent to the court of appeals’ decision, the 
INS has made additional efforts to pursue the process necessary for 
petitioner to apply for Lithuanian citizenship based on his parents’ 
Lithuanian citizenship. Although petitioner states (Br. 7) that “[a]t the 
INS’s instruction in March of 2000,” he “reapplied for Lithuanian 
citizenship,” the letter he proffers (hand-dated March 27, 2000, unac- 
companied by proof of mailing) does not purport to comply with various 
application requirements (including payment of an application fee), as the 
Lithuanian Consulate General has indicated is necessary. When the INS 
obtained a letter from the Lithuanian Consulate General to INS De- 
portation Officer Paul Barrows, dated March 31, 2000, regarding those 
application requirements, the INS notified petitioner that he must report 
to the INS office to review his immigration status. See INS Form G-56 
dated April 24, 2000 (scheduling appointment for May 4, 2000). Petitioner 
informed the INS that he could not keep that appointment and requested 
that it be rescheduled. Ibid. But petitioner thereafter failed to keep two 
subsequently scheduled appointments. See INS Form G-56 dated May 16, 
2000 (scheduling appointment for June 1, 2000); INS Form G-56 dated 
August 1, 2000 (scheduling appointment for August 18, 2000) (returned to 

49 

Further, the courts should be especially reluctant to 
second-guess Executive Branch judgments regarding the 
prospects of removing an alien, both because of the Execu- 
tive’s greater expertise and access to all the relevant infor- 
mation and communications, and because of the need for the 
Nation to speak with one voice on such matters. See J.A. 
219; Aguirre-Aguirre, 526 U.S. at 425. Permitting the release 
of a former resident alien based on an ad hoc judicial deter- 
mination regarding the probable length of his future de- 
tention would intrude into an area of confluence between the 
Executive’s responsibilities for immigration enforcement 
and diplomacy, signal to other nations that their refusal to 
accept the repatriation of their own nationals who are 
detained under final orders of deportation may result in 
release of the aliens back into American society, and perhaps 
thereby cause those other nations to ignore or disclaim their 
responsibility to accept the return of their own nationals who 
have violated the laws of the United States. See Barrera- 
Echavarria, 44 F.3d at 1448 (“A judicial decision requiring 
that excludable aliens be released into American society 
when neither their countries of origin nor any third country 
will admit them might encourage the sort of intransigence 
Cuba has exhibited in the negotiations over the Mariel 

INS as undeliverable). We are lodging copies of the relevant documents 
with the Clerk of this Court. 

Moreover, petitioner has evidenced no attempt to pursue other ave- 
nues of obtaining travel documents from either Germany or Russia, as 
suggested by the court of appeals. 

J.A. 217-219 (noting two possibilities 

that remained unexplored: a claim by petitioner of German citizenship 
based on ethnic German ancestry through his mother, and a claim of 
Russian citizenship because of the Soviet Union’s control over the birth- 
place of petitioner’s parents at one time and the fact that some of peti- 
tioner’s relatives live there). Petitioner’s failure to make such efforts 
stands in sharp contrast to the efforts of Mr. Mezei, who “personally 
applied for entry to about a dozen Latin-American countries but all turned 
him down.” Mezei, 345 U.S. at 209. 

50 

refugees.”); Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 
1984) (en banc) (“[T]his approach would ultimately result in 
our losing control over our borders. A foreign leader could 
eventually compel us to grant physical admission via parole 
to any aliens he wished by the simple expedient of sending 
them here and then refusing to take them back.”), aff ’d, 472 
U.S. 846 (1985). 

Thus, the court of appeals correctly concluded that, given 
the government’s plenary authority over immigration policy 
and its interest “in effectuating deportation of a resident 
alien and expulsion of an excludable alien,” the government 
“may detain a resident alien based on either danger to the 
community or risk of flight while good faith efforts to 
effectuate the alien’s deportation continue and reasonable 
parole and periodic review procedures are in place.” J.A. 
227. 

23 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

23 Petitioner suggests (Br. 10-11, 25-33) that the Court should avoid the 
constitutional question presented here by construing Section 1231(a)(6) to 
authorize detention “for only a reasonable time to effectuate removal.” We 
address that argument in our briefs in Reno v. Ma, No. 00-38, which is 
consolidated with this case for oral argument. For the reasons more fully 
set forth in those briefs, such a construction of Section 1231(a)(6) would be 
inconsistent with the plain language of that Section, other statutory 
provisions governing detention of criminal aliens, the statutory history, 
and the Attorney General’s interpretation of Section 1231(a)(6), to which 
deference is due under this Court’s decision in Aguirre-Aguirre, 526 U.S. 
at 425. 

51 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

DONALD KEENER 
QUYNH VU 

Attorneys 

JANUARY 2001 

APPENDIX A 

1. Section 1226 of Title 8 of the United States Code 
(Supp. V 1999), provides in relevant part: 

Apprehension and detention of aliens 

(a) Arrest, detention, and release 

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

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

(2) may release the alien on— 

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

(B) conditional parole; but 

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

(b) Revocation of bond or parole 

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

(1a) 

2a 

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

(c) Detention of criminal aliens 

(1) Custody 

The Attorney General shall take into custody 
any alien who— 

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

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

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

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

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

(2) Release 

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

3a 

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

* * * * * 

4a 

2. Section 1231(a) of Title 8 of the United States 
Code (Supp. V 1999), provides in relevant part: 

Detention and removal of aliens ordered removed 

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

removed 

(1) Removal period 

(A) In general 

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

(B) Beginning of period 

The removal period begins on the latest of the 
following: 

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

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

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

(C) Suspension of period 

The removal period shall be extended beyond a 
period of 90 days and the alien may remain in 

5a 

detention during such extended period if the alien 
fails or refuses to make timely application in good 
faith for travel or other documents necessary to the 
alien’s departure or conspires or acts to prevent the 
alien’s removal subject to an order of removal. 

(2) Detention 

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

(3) Supervision after 90-day period 

If the alien does not leave or is not removed 
within the removal period, the alien, pending removal, 
shall be subject to supervision under regulations 
prescribed by the Attorney General. The regulations 
shall include provisions requiring the alien— 

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

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

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

6a 

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

* * * * * 

(6) Inadmissible or criminal aliens 

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

(7) Employment authorization 

No alien ordered removed shall be eligible to 
receive authorization to be employed in the United 
States unless the Attorney General makes a specific 
finding that— 

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

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

7a 

APPENDIX B 

Section 241.4 of Title 8 of the Code of Federal 
Regulations (1999) provided: 

§ 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; 

8a 

(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. 

9a 

APPENDIX C 

Section 241.4 of Title 8 of the Code of Federal 
Regulations as revised December 21, 2000, 65 Fed. Reg. 
80,294-80,298 provides: 

§ 241.4 Continued detention of inadmissible, criminal, 
and other aliens beyond the removal period. 

(a) Scope. The authority to continue an alien in 
custody or grant release or parole under sections 
241(a)(6) and 212(d)(5)(A) of the Act shall be exercised 
by the Commissioner or Deputy Commissioner, as 
follows: Except as otherwise directed by the Com- 
missioner or his or her designee, the Executive Associ- 
ate Commissioner Field Operations (Executive Asso- 
ciate Commissioner) or the district director may 
continue an alien in custody beyond the removal period 
described in section 241(a)(1) of the Act pursuant to the 
procedures described in this section. Except as 
provided in paragraph (b)(2) of this section, the pro- 
visions of this section apply to custody determinations 
for the following groups of aliens: 

(1) An alien ordered removed who is inadmissible 
under section 212 of the Act, including an excludable 
alien convicted of one or more aggravated felony 
offenses and subject to the provisions of section 501(b) 
of the Immigration Act of 1990, Public Law 101-649, 104 
Stat. 4978, 5048 (codified at 8 U.S.C. 1226(e)(1) through 
(e)(3)(1994)); 

(2) An alien ordered removed who is removable 
under section 237(a)(1)(C) of the Act; 

(3) An alien ordered removed who is removable 
under sections 237(a)(2) or 237(a)(4) of the Act, 

10a 

including deportable criminal aliens whose cases are 
governed by former section 242 of the Act prior to 
amendment by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Div. C of Public 
Law 104-208, 110 Stat. 3009-546; and 

(4) An alien ordered removed who the decision- 
maker determines is unlikely to comply with the 
removal order or is a risk to the community. 

(b) Applicability to particular aliens.—(1) Motions 
to reopen. An alien who has filed a motion to reopen 
immigration proceedings for consideration of relief from 
removal, including withholding or deferral of removal 
pursuant to 8 CFR 208.16 or 208.17, shall remain 
subject to the provisions of this section unless the 
motion to reopen is granted. Section 236 of the Act and 
8 CFR 236.1 govern custody determinations for aliens 
who are in pending immigration proceedings before the 
Executive Office for Immigration Review. 

(2) Parole for certain Cuban nationals. The review 
procedures in this section do not apply to any 
inadmissible Mariel Cuban who is being detained by the 
Service pending an exclusion or removal proceeding, or 
following entry of a final exclusion or pending his or her 
return to Cuba or removal to another country. Instead, 
the determination whether to release on parole, or to 
revoke such parole, or to detain, shall in the case of a 
Mariel Cuban be governed by the procedures in 8 CFR 
212.12. 

(3) Individuals granted withholding or deferral of 
removal. Aliens granted withholding of removal under 
section 241(b)(3) of the Act or withholding or deferral of 
removal under the Convention Against Torture who 

11a 

are otherwise subject to detention are subject to the 
provisions of this part 241. Individuals subject to a 
termination of deferral hearing under 8 CFR 208.17(d) 
remain subject to the provisions of this part 241 
throughout the termination process. 

(c) Delegation of authority. The Attorney General’s 
statutory authority to make custody determinations 
under sections 241(a)(6) and 212(d)(5)(A) of the Act 
when there is a final order of removal is delegated as 
follows: 

(1) District directors. The initial custody deter- 
mination described in paragraph (h) of this section and 
any further custody determination concluded in the 
three-month period immediately following expiration of 
the 90-day removal period, subject to the provisions of 
paragraph (c)(2) of this section, will be made by the 
district director having jurisdiction over the alien. The 
district director shall maintain appropriate files 
respecting each detained alien reviewed for possible 
release, and shall have authority to determine the order 
in which the cases shall be reviewed, and to coordinate 
activities associated with these reviews in his or her 
respective district. 

(2) Headquarters Post-Order Detention Unit 
(HQPDU). For any alien the district director refers 
for further review after the 90-day removal period, or 
any alien who has not been released or removed by the 
expiration of the three-month period after the 90-day 
review, all further custody determinations will be made 
by the Executive Associate Commissioner, acting 
through the HQPDU. 

12a 

(3) The HQPDU review plan. The Executive Asso- 
ciate Commissioner shall appoint a Director of the 
HQPDU. The Director of the HQPDU shall have 
authority to establish and maintain appropriate files 
respecting each detained alien to be reviewed for 
possible release, to determine the order in which the 
cases shall be reviewed, and to coordinate activities 
associated with these reviews. 

(4) Additional delegation of authority. All refer- 
ences to the Executive Associate Commissioner and 
district director in this section shall be deemed to 
include any person or persons (including a committee) 
designated in writing by the district director or 
Executive Associate Commissioner to exercise powers 
under this section. 

(d) Custody determinations. A copy of any decision 
by the district director or Executive Associate Com- 
missioner to release or to detain an alien shall be 
provided to the detained alien. A decision to retain 
custody shall briefly set forth the reasons for the 
continued detention. A decision to release may contain 
such special conditions as are considered appropriate in 
the opinion of the Service. Notwithstanding any other 
provisions of this section, there is no appeal from the 
district director’s or the Executive Associate Com- 
missioner’s decision. 

(1) Showing by the alien. The district director or 
the Executive Associate Commissioner may release an 
alien if the alien demonstrates to the satisfaction of the 
Attorney General or her designee that his or her 
release will not pose a danger to the community or to 
the safety of other persons or to property or a 
significant risk of flight pending such alien’s removal 

13a 

from the United States. The district director or the 
Executive Associate Commissioner may also, in accor- 
dance with the procedures and consideration of the 
factors set forth in this section, continue in custody any 
alien described in paragraphs (a) and (b)(1) of this 
section. 

(2) Service of decision and other documents. All 
notices, decisions, or other documents in connection 
with the custody reviews conducted under this section 
by the district director or Executive Associate Com- 
missioner shall be served on the alien, in accordance 
with 8 CFR 103.5a, by the Service district office having 
jurisdiction over the alien. Release documentation 
(including employment authorization if appropriate) 
shall be issued by the district office having jurisdiction 
over the alien in accordance with the custody 
determination made by the district director or by the 
Executive Associate Commissioner. Copies of all such 
documents will be retained in the alien’s record and 
forwarded to the HQPDU. 

(3) Alien’s representative. The alien’s representa- 
tive is required to complete Form G-28, Notice of Entry 
of Appearance as Attorney or Representative, at the 
time of the interview or prior to reviewing the 
detainee’s records. The Service will forward by regular 
mail a copy of any notice or decision that is being 
served on the alien only to the attorney or representa- 
tive of record. The alien remains responsible for 
notification to any other individual providing assistance 
to him or her. 

(e) Criteria for release. Before making any recom- 
mendation or decision to release a detainee, a majority 
of the Review Panel members, or the Director of the 

14a 

HQPDU in the case of a record review, must conclude 
that: 

(1) Travel documents for the alien are not available 
or, in the opinion of the Service, immediate removal, 
while proper, is otherwise not practicable or not in the 
public interest; 

(2) The detainee is presently a non-violent person; 

(3) The detainee is likely to remain nonviolent if 
released; 

(4) The detainee is not likely to pose a threat to the 
community following release; 

(5) The detainee is not likely to violate the condi- 
tions of release; and 

(6) The detainee does not pose a significant flight 
risk if released. 

(f ) 
Factors for consideration. The following factors 

should be weighed in considering whether to recom- 
mend further detention or release of a detainee: 

(1) The nature and number of disciplinary infrac- 
tions or incident reports received when incarcerated or 
while in Service custody; 

(2) The detainee’s criminal conduct and criminal 
convictions, including consideration of the nature and 
severity of the alien’s convictions, sentences imposed 
and time actually served, probation and criminal parole 
history, evidence of recidivism, and other criminal 
history; 

15a 

(3) Any available psychiatric and psychological 
reports pertaining to the detainee’s mental health; 

(4) Evidence of rehabilitation including institutional 
progress relating to participation in work, educational, 
and vocational programs, where available; 

(5) Favorable factors, including ties to the United 
States such as the number of close relatives residing 
here lawfully; 

(6) Prior immigration violations and history; 

(7) The likelihood that the alien is a significant flight 
risk or may abscond to avoid removal, including history 
of escapes, failures to appear for immigration or other 
proceedings, absence without leave from any halfway 
house or sponsorship program, and other defaults; and 

(8) Any other information that is probative of 
whether the alien is likely to— 

(i) Adjust to life in a community, 

(ii) Engage in future acts of violence, 

(iii) Engage in future criminal activity, 

(iv) Pose a danger to the safety of himself or herself 
or to other persons or to property, or 

(v) Violate the conditions of his or her release from 
immigration custody pending removal from the United 
States. 

(g) Travel documents and docket control for aliens 
continued in detention beyond the removal period—(1) 
In general. The district director shall continue to 

16a 

undertake appropriate steps to secure travel docu- 
ments for the alien both before and after the expiration 
of the removal period. If the district director is unable 
to secure travel documents within the removal period, 
he or she shall apply for assistance from Headquarters 
Detention and Deportation, Office of Field Operations. 
The district director shall promptly advise the HQPDU 
Director when travel documents are obtained for an 
alien whose custody is subject to review by the 
HQPDU. The Service’s determination that receipt of a 
travel document is likely may by itself warrant 
continuation of detention pending the removal of the 
alien from the United States. 

(2) Availability of travel document. In making a 
custody determination, the district director and the 
Director of the HQPDU shall consider the ability to 
obtain a travel document for the alien. If it is 
established at any stage of a custody review that, in the 
judgment of the Service, travel documents can be 
obtained, or such document is forthcoming, the alien 
will not be released unless immediate removal is not 
practicable or in the public interest. 

(3) Removal. The Service will not conduct a cus- 
tody review under these procedures when the Service 
notifies the alien that it is ready to execute an order of 
removal. 

(4) Alien’s cooperation. Release will be denied if 
the alien fails or refuses to cooperate in the process of 
obtaining a travel document. See, e.g., section 
241(a)(1)(C) of the Act. 

17a 

(h) District director’s custody review procedures. 
The district director’s custody determination will be 
developed in accordance with the following procedures: 

(1) Records review. The district director will 
conduct the initial custody review. For aliens described 
in paragraphs (a) and (b)(1) of this section, the district 
director will conduct a records review prior to the 
expiration of the 90-day removal period. This initial 
post-order custody review will consist of a review of the 
alien’s records and any written information submitted 
in English to the district director by or on behalf of the 
alien. However, the district director may in his or her 
discretion schedule a personal or telephonic interview 
with the alien as part of this custody determination. 
The district director may also consider any other 
relevant information relating to the alien or his or her 
circumstances and custody status. 

(2) Notice to alien. The district director will pro- 
vide written notice to the detainee approximately 30 
days in advance of the pending records review so that 
the alien may submit information in writing in support 
of his or her release. The alien may be assisted by a 
person of his or her choice, subject to reasonable secu- 
rity concerns at the institution and panel’s discretion, in 
preparing or submitting information in response to the 
district director’s notice. Such assistance shall be at no 
expense to the Government. If the alien or his or her 
representative requests additional time to prepare 
materials beyond the time when the district director 
expects to conduct the records review, such a request 
will constitute a waiver of the requirement that the 
review occur prior to the expiration of the removal 
period. 

18a 

(3) Factors for consideration. The district direc- 
tor’s review will include but is not limited to considera- 
tion of the factors described in paragraph (f ) of this 
section. Before making any decision to release a 
detainee, the district director must be able to reach the 
conclusions set forth in paragraph (e) of this section. 

(4) District director’s decision. The district director 
will notify the alien in writing that he or she is to be 
released from custody, or that he or she will be con- 
tinued in detention pending removal or further review 
of his or her custody status. 

(5) District office staff. The district director may 
delegate the authority to conduct the custody review, 
develop recommendations, or render the custody or 
release decision to those persons directly responsible 
for detention within his or her district. This includes 
the deputy district director, the assistant director for 
detention and deportation, the officer-in-charge of a 
detention center, persons acting in such capacities, or 
such other persons as the district director may 
designate from the professional staff of the Service. 

(i) Determinations by the Executive Associate 
Commissioner. Determinations by the Executive 
Associate Commissioner to release or retain custody of 
aliens shall be developed in accordance with the 
following procedures. 

(1) Review panels. The HQPDU Director shall 
designate a panel or panels to make recommendations 
to the Executive Associate Commissioner. A Review 
Panel shall, except as otherwise provided, consist of 
two persons. Members of a Review Panel shall be 
selected from the professional staff of the Service. All 

19a 

recommendations by the two-member Review Panel 
shall be unanimous. If the vote of the two-member 
Review Panel is split, it shall adjourn its deliberations 
concerning that particular detainee until a third Review 
Panel member is added. The third member of any 
Review Panel shall be the Director of the HQPDU or 
his or her designee. A recommendation by a three- 
member Review Panel shall be by majority vote. 

(2) Records review. Initially, and at the beginning 
of each subsequent review, the HQPDU Director or a 
Review Panel shall review the alien’s records. Upon 
completion of this records review, the HQPDU Director 
or the Review Panel may issue a written recommen- 
dation that the alien be released and reasons therefore. 

(3) Personal interview. (i) If the HQPDU Director 
does not accept a panel’s recommendation to grant 
release after a records review, or if the alien is not 
recommended for release, a Review Panel shall per- 
sonally interview the detainee. The scheduling of such 
interviews shall be at the discretion of the HQPDU 
Director. The HQPDU Director will provide a 
translator if he or she determines that such assistance 
is appropriate. 

(ii) The alien may be accompanied during the 
interview by a person of his or her choice, subject to 
reasonable security concerns at the institution’s and 
panel’s discretion, who is able to attend at the time of 
the scheduled interview. Such assistance shall be at no 
expense to the Government. The alien may submit to 
the Review Panel any information, in English, that he 
or she believes presents a basis for his or her release. 

20a 

(4) Alien’s participation. Every alien shall respond 
to questions or provide other information when 
requested to do so by Service officials for the purpose of 
carrying out the provisions of this section. 

(5) Panel recommendation. Following completion 
of the interview and its deliberations, the Review Panel 
shall issue a written recommendation that the alien be 
released or remain in custody pending removal or 
further review. This written recommendation shall 
include a brief statement of the factors that the Review 
Panel deems material to its recommendation. 

(6) Determination. The Executive Associate Com- 
missioner shall consider the recommendation and 
appropriate custody review materials and issue a 
custody determination, in the exercise of discretion 
under the standards of this section. The Executive 
Associate Commissioner’s review will include but is not 
limited to consideration of the factors described in 
paragraph (f ) of this section. Before making any 
decision to release a detainee, the Executive Associate 
Commissioner must be able to reach the conclusions set 
forth in paragraph (e) of this section. The Executive 
Associate Commissioner is not bound by the panel’s 
recommendation. 

(j) Conditions of release.—(1) In general. The 
district director or Executive Associate Commissioner 
shall impose such conditions or special conditions on 
release as the Service considers appropriate in an 
individual case or cases, including but not limited to the 
conditions of release noted in 8 CFR 212.5(c) and 
§ 241.5. An alien released under this section must abide 
by the release conditions specified by the Service in 
relation to his or her release or sponsorship. 

21a 

(2) Sponsorship. The district director or Executive 
Associate Commissioner may, in the exercise of dis- 
cretion, condition release on placement with a close 
relative who agrees to act as a sponsor, such as a 
parent, spouse, child, or sibling who is a lawful perma- 
nent resident or a citizen of the United States, or may 
condition release on the alien’s placement or parti- 
cipation in an approved halfway house, mental health 
project, or community project when, in the opinion of 
the Service, such condition is warranted. No detainee 
may be released until sponsorship, housing, or other 
placement has been found for the detainee, if ordered, 
including but not limited to, evidence of financial 
support. 

(3) Employment authorization. The district direc- 
tor and Executive Associate Commissioner may, in the 
exercise of discretion, grant employment authorization 
under the same conditions set forth in § 241.5(c) for 
aliens released under an order of supervision. 

(4) Withdrawal of release approval. The district 
director or Executive Associate Commissioner may, in 
the exercise of discretion, withdraw approval for 
release of any detained alien prior to release when, in 
the decision-maker’s opinion, the conduct of the 
detainee, or any other circumstance, indicates that 
release would no longer be appropriate. 

(k) Timing of reviews. The timing of reviews shall 
be in accordance with the following guidelines: 

(1) District director. (i) Prior to the expiration of 
the 90-day removal period, the district director shall 
conduct a custody review for an alien described in 
paragraphs (a) and (b)(1) of this section where the 

22a 

alien’s removal, while proper, cannot be accomplished 
during the 90-day period because no country currently 
will accept the alien, or removal of the alien prior to 
expiration of the removal period is impracticable or 
contrary to the public interest. As provided in 
paragraph (h)(4) of this section, the district director will 
notify the alien in writing that he or she is to be 
released from custody, or that he or she will be 
continued in detention pending removal or further 
review of his or her custody status. 

(ii) When release is denied pending the alien’s 
removal, the district director in his or her discretion 
may retain responsibility for custody determinations 
for up to three months after expiration of the 90-day 
removal period, during which time the district director 
may conduct such additional review of the case as he or 
she deems appropriate. The district director may 
release the alien if he or she is not removed within the 
three-month period following the expiration of the 90- 
day removal period, in accordance with paragraphs (e), 
(f), and (j) of this section, or the district director may 
refer the alien to the HQPDU for further custody 
review. 

(2) HQPDU reviews. (i) District director referral 
for further review. When the district director refers a 
case to the HQPDU for further review, as provided in 
paragraph (c)(2) of this section, authority over the 
custody determination transfers to the Executive 
Associate Commissioner, according to procedures 
established by the HQPDU. The Service will provide 
the alien with approximately 30 days notice of this 
further review, which will ordinarily be conducted by 

23a 

the expiration of the removal period or as soon 
thereafter as practicable. 

(ii) District director retains jurisdiction. When the 
district director has advised the alien at the 90-day 
review as provided in paragraph (h)(4) of this section 
that he or she will remain in custody pending removal 
or further custody review, and the alien is not removed 
within three months of the district director’s decision, 
authority over the custody determination transfers 
from the district director to the Executive Associate 
Commissioner. The initial HQPDU review will 
ordinarily be conducted at the expiration of the three- 
month period after the 90-day review or as soon 
thereafter as practicable. The Service will provide the 
alien with approximately 30 days notice of that review. 

(iii) Continued detention cases. A subsequent 
review shall ordinarily be commenced for any detainee 
within approximately one year of a decision by the 
Executive Associate Commissioner declining to grant 
release. Not more than once every three months in the 
interim between annual reviews, the alien may submit a 
written request to the HQPDU for release consi- 
deration based on a proper showing of a material 
change in circumstances since the last annual review. 
The HQPDU shall respond to the alien’s request in 
writing within approximately 90 days. 

(iv) Review scheduling. Reviews will be conducted 
within the time periods specified in paragraphs (k)(1)(i), 
(k)(2)(i), (k)(2)(ii), and (k)(2)(iii) of this section or as soon 
as possible thereafter, allowing for any unforeseen 
circumstances or emergent situation. 

24a 

(v) Discretionary reviews. The HQPDU Director, 
in his or her discretion, may schedule a review of a 
detainee at shorter intervals when he or she deems 
such review to be warranted. 

(3) Postponement of review. In the case of an alien 
who is in the custody of the Service, the district 
director or the HQPDU Director may, in his or her 
discretion, suspend or postpone the custody review 
process if such detainee’s prompt removal is practicable 
and proper, or for other good cause. The decision and 
reasons for the delay shall be documented in the alien’s 
custody review file or A file, as appropriate. Rea- 
sonable care will be exercised to ensure that the alien’s 
case is reviewed once the reason for delay is remedied 
or if the alien is not removed from the United States as 
anticipated at the time review was suspended or 
postponed. 

(4) Transition provisions. (i) The provisions of this 
section apply to cases that have already received the 
90-day review. If the alien’s last review under the 
procedures set out in the Executive Associate Com- 
missioner memoranda entitled Detention Procedures 
for Aliens Whose Immediate Repatriation is Not Pos- 
sible or Practicable, February 3, 1999; Supplemental 
Detention Procedures, April 30, 1999; Interim Changes 
and Instructions for Conduct of Post-order Custody 
Reviews, August 6, 1999; Review of Long-term 
Detainees, October 22, 1999, was a records review and 
the alien remains in custody, the HQPDU will conduct a 
custody review within six months of that review 
(Memoranda available at http://www.ins.usdoj.gov). If 
the alien’s last review included an interview, the 
HQPDU review will be scheduled one year from the 

25a 

last review. These reviews will be conducted pursuant 
to the procedures in paragraph (i) of this section, within 
the time periods specified in this paragraph or as soon 
as possible thereafter, allowing for resource limitations, 
unforeseen circumstances, or an emergent situation. 

(ii) Any case pending before the Board on December 
21, 2000 will be completed by the Board. If the Board 
affirms the district director’s decision to continue the 
alien in detention, the next scheduled custody review 
will be conducted one year after the Board’s decision in 
accordance with the procedures in paragraph (i) of this 
section. 

(l) Revocation of release—(1) Violation of condi- 
tions of release. 

Any alien described in paragraph (a) 
or (b)(1) of this section who has been released under an 
order of supervision or other conditions of release who 
violates the conditions of release may be returned to 
custody. Any such alien who violates the conditions of 
an order of supervision is subject to the penalties 
described in section 243(b) of the Act. Upon revocation, 
the alien will be notified of the reasons for revocation of 
his or her release or parole. The alien will be afforded 
an initial informal interview promptly after his or her 
return to Service custody to afford the alien an 
opportunity to respond to the reasons for revocation 
stated in the notification. 

(2) Determination by the Service. The Executive 
Associate Commissioner shall have authority, in the 
exercise of discretion, to revoke release and return to 
Service custody an alien previously approved for 
release under the procedures in this section. A district 
director may also revoke release of an alien when, in 
the district director’s opinion, revocation is in the public 

26a 

interest and circumstances do not reasonably permit 
referral of the case to the Executive Associate Com- 
missioner. Release may be revoked in the exercise of 
discretion when, in the opinion of the revoking official: 

(i) The purposes of release have been served; 

(ii) The alien violates any condition of release; 

(iii) It is appropriate to enforce a removal order or to 
commence removal proceedings against an alien; or 

(iv) The conduct of the alien, or any other circum- 
stance, indicates that release would no longer be 
appropriate. 

(3) Timing of review when release is revoked. If the 
alien is not released from custody following the informal 
interview provided for in paragraph (l)(1) of this 
section, the HQPDU Director shall schedule the review 
process in the case of an alien whose previous release or 
parole from immigration custody pursuant to a decision 
of either the district director or the Executive 
Associate Commissioner under the procedures in this 
section has been or is subject to being revoked. The 
normal review process will commence with notification 
to the alien of a records review and scheduling of an 
interview, which will ordinarily be expected to occur 
within approximately three months after release is 
revoked. That custody review will include a final 
evaluation of any contested facts relevant to the 
revocation and a determination whether the facts as 
determined warrant revocation and further denial of 
release. Thereafter, custody reviews will be conducted 
annually under the provisions of paragraphs (i), (j), and 
(k) of this section. 

27a 

APPENDIX D 

[EXHIBIT A] 

[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 

[Filed: 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 
administratively 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- 

28a 

trict Director should provide an alien with the oppor- 
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, (202) 616-7836. 

29a 

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

30a 

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), 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; 

31a 

(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. 

32a 

APPENDIX E 

[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 

[Filed: 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. 

33a 

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 

34a 

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 Headquarters review will be con- 
sidered a final custody decision until the District level 
decision has been ratified through the Headquarters 
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 Di- 
rector’s decision, the case shall be forwarded to the 
Regional Office with a cover memorandum and instruc- 
tions to refer the case back to the District for further 
consideration or documentation. The Headquarters re- 
viewer shall detail the issues that resulted in the refer- 
ral 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 
custody review of administratively final order 

35a 

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- 
sidered and explain that the alien will be pro- 

36a 

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. 

37a 

(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 
determinations will be made by weighing favor- 
able and adverse factors to determine whether 
the detainee has demonstrated by clear and 
convincing 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 ad- 
verse 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- 

38a 

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 

39a 

so, then the case shall be referred to Head- 
quarters OPS/DDP for assistance. 

More de- 
tailed instructions will be issued from the 
Executive Associate Commissioner for Opera- 
tions by separate 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 in- 
structions 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